ZONDAG V ZONDAG AND ANOR HC HAM CIV 2003-419-000328

ZONDAG V ZONDAG AND ANOR HC HAM CIV 2003-419-000328 11 February 2010IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2003-419-000328BETWEEN HERMANUS JOHANNUS GERARDUS ZONDAG Plaintiff AND BERNADUS CORNELIUS HERMANUS ZONDAG AND MARIA CRISTINA ROSE ZONDAG SNELDERS Defendants Hearing: 11 February 2010 Appearances: H Zondag in person B Zondag in person Judgment: 11 February 2010ORAL JUDGMENT OF PRIESTLEY JCopies to: HJG Zondag, 528 Thames Coast Road, Te Puru, R D 5, Thames 3575 BCH & MCR Zondag, 6 Tapu Creek Farms, R D 5, Thames 3575[1] With a bit of luck this long running and acrimonious dispute has come to an end. [2] This judgment of mine will be brief. It is really of no interest to anyone other than the parties. [3] Despite protracted litigation throughout 2005 and 2006, which led to a 657 paragraph judgment from Nicholson J, the parties, who are brothers, still failed to come to finality. [4] To some extent, and I think helpfully so, matters were brought to a head by the decision of Hermanus Zondag to make an application for a charging order and writ of sale. These applications, predictably perhaps, led to Mr Bernadus Zondag applying to have the applications set aside. In turn Stevens J made certain timetable orders and directions on 2 December 2009 which have resulted in the hearing before me today. [5] The charging order has been discharged. The application for the writ of sale remains. Without going into precise figures, the amount which Hermanus Zondag as successful plaintiff considers is still owing to him is in the region of $16,000. His brother disputes that sum and contends for $500 odd. [6] A second issue on which the parties were unable to agree is the formula contained in [646] of Nicholson J's June 2007 judgment. His Honour set out a formula there relating to the costs of necessary boundary adjustments. Hermanus was to pay the reasonable expenses incurred of third parties, after allowance for payments he has already made to the north boundary adjustment. [7] Mr Bernadus Zondag has taken the view, with some consistency, that this gave him a right of set off. When the matter was looked at judicially by Randerson J His Honour's view was a paltry claim of that type should properly be resolved in the Disputes Tribunal. The matter also came before Wild J in July 2009 who correctly was of the view that there was no proper set off which should be claimed so far as any unpaid portion of the judgment to which Hermanus was entitled was concerned.[8] The major components of the unpaid sums are: a) An unpaid portion of the judgment totalling $6,151.62. b) Interest at the 7½% Judicature Act rates in respect of unpaid sums where there has been delay in payment as a result of an unsuccessful appeal. [9] Fortunately, pursuant to Stevens J's directions, $16,059 was paid into court two months ago by Bernadus Zondag. [10] After extensive discussion and interrogation of the parties and a perusal of those parts of the court file which were available to me, it seemed to me that there could be no dispute about the plaintiff's liability, in terms of Nicholson J's judgment, to post-June 2007 costs relating to the boundary adjustment. The parties disputed amongst themselves what credits, if any, Hermanus was entitled to in respect of pre- judgment payments. I do not set out here the competing submissions. Suffice to say that my assessment of Nicholson J's judgment is that, in large measure, what he said in [646] is not directly related to earlier parts of his judgment, and in particular [308] – [325] or thereabouts, where His Honour is disallowing various components of invoices which had been thrown up many years previously. [11] Making an approximate allowance for an appropriate credit to Hermanus Zondag, and taking as legitimate the post-judgment invoices, the sum which I indicated to the parties was appropriate for the boundary adjustment in that regard, and to which they subsequently agreed, was $4,500. That is the figure which Hermanus Zondag will need to contribute to his brother in relation to the boundary costs. [12] That leaves the $16,000 odd figure which is claimed under the writ of sale. The approach I have adopted reflects the following considerations: a) That the $6,151.62 remains due and owing. It is in fact the outstanding balance of an awarded sum which, for various reasons,Randerson J (who did not interfere with it), ordered to be paid into Court. b) The interest awards of Nicholson J were specific. They flowed from a date which he plucked in 2006 up to the date of his costs and interest judgment, which was 28 September 2007. c) It seemed an appropriate rate of interest for 2¼ years should be paid to Hermanus Zondag on the unpaid balance of the judgment sum. d) Given the fact that Nicholson J's interest award terminated from the date of his judgment, and given too that interest, albeit at a lower rate, was received whilst monies paid into Court were deposited in the Registrar's trust account, I can see no justification, in the circumstances, for awarding the higher rate of 7½% pursuant to Nicholson J's order which Hermanus Zondag claims. e) I consider that some reasonable allowance should be made to Hermanus Zondag to reimburse him for his out of pocket expenses in respect of the charging order and writ of sale exercise which, although I accept might not strictly have been necessary given the enormous equity in the property which was charged, nonetheless was a procedural step which had the salutary effect of bringing matters to a rapid head. [13] To reflect these considerations and bring finality the orders which I thus make are: a) The sum of $3,100 (being effectively a capital sum) is to be paid from the monies held in the Court's trust account to the plaintiff Hermanus Zondag. b) The balance of the $16,059 is to be paid to the defendant Bernadus Zondag.c) Any interest accrued from the date of the pay-in to the date of the payout is to be pro rata between the parties. d) The sum which has been paid to the Registry by Hermanus Zondag of $920, being "Sheriff's fees warrant", is to be refunded to him. This order is made on the assumption that the $920 was in fact paid. [14] Both parties being self-represented, it is inappropriate to make any orders for costs. The parties' additional out of pocket expenses lie where they fall............................. Priestley J