FARR v ROSS MILLER [2017] NZHC 3150

FARR v ROSS MILLER [2017] NZHC 3150 [15 December 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2013-485-8999[2017] NZHC 3150UNDER the Insolvency Act 2006BETWEEN MICHAEL EDWARD FARR ASASSIGNEE OF INSPECT IT 1STLIMITED (IN LIQUIDATION)PlaintiffAND ROSS MILLERDefendantOn the Papers:Counsel: B M K Pamatatau for PlaintiffJudgment: 15 December 2017JUDGMENT OF CLARK J[1] Michael Farr, as assignee of Inspect It 1st Ltd (in liq), applies without noticefor leave pursuant to r 17.9(2)(c) of the High Court Rules to issue an enforcementprocess, namely a charging order. Mr Farr also requests leave to subsequently requestthe registrar to issue a sale order.Background[2] Inspect It 1st obtained a judgment in the Disputes Tribunal against Ross Milleron 2 July 2013 (judgment debt). Inspect It 1st Ltd was placed into liquidation on thesame day.[3] On 23 January 2014 Inspect It 1st applied to adjudicate Mr Miller bankrupt onthe basis of the unpaid judgment debt owed by Mr Miller. On 7 July 2014Inspect It 1st's application was withdrawn with leave. The Court ordered costs anddisbursements of $3,876.00 to be paid by Mr Miller (order for costs).[4] On 2 March 2015, by a deed of assignment, Inspect It 1st assigned toMichael Farr the Disputes Tribunal judgment debt and order for costs. Notice of theassignment was given to Mr Miller on 20 July 2015.[5] On 11 May 2016 in the Porirua District Court an order was made permittingMr Farr to issue an enforcement process against Mr Miller and to take proceedings asInspect It 1st would have been entitled to take against Mr Miller for the unsatisfiedjudgment debt and costs. The order was served on Mr Miller on 20 July 2016.[6] On 31 May 2017 Thomas J granted leave to Mr Farr to issue a charging orderand subsequently to request the registrar to issue a sale order in relation to thejudgment debt.[7] Mr Farr has sworn an affidavit deposing to the changes that have taken placein the parties entitled to enforce the judgment. Mr Farr has also verified his beliefMr Miller is beneficially entitled to an estate in fee simple (identifier WN21A/835,Lot 111 DP 48966) (the property). He annexed a certificate of title of the propertywhich recorded a transfer of the property to Mr Miller and a Susan Miller on 26 April1985. Two charging orders are registered on the certificate of title. The first is dated27 September 2013 between Mr Miller and Inspect It 1st. The second is:10820828.1 CHARGING ORDER DATED 1 JUNE 2017 BETWEEN ROSSMILLER AND MICHAEL EDWARD FARR – 15.6.2017 at 7:00 am[8] Mr Farr now wishes to place a charging order over the property for theoutstanding amount of the order for costs.Legislative provisions[9] By operation of r 17.9(2)(c) of the High Court Rules leave is required to issuean enforcement process if any change has taken place (whether by death or otherwise)in the parties entitled or liable to enforcement under a judgment. An "enforcementprocess" includes a "charging order" and a "sale order".1[10] The grant of leave to issue an execution process is a matter of discretion to beexercised on the merits of the case.2[11] A Judge may determine an application can properly be dealt with withoutnotice where the application relates to a routine matter.3Assessment[12] I am satisfied Mr Farr is entitled to the orders he seeks. He is the assignee ofa sealed order for costs. Mr Miller is indebted to Mr Farr pursuant to the order forcosts. The certificate of title confirms Mr Miller has an interest in the title sought tobe charged. I am also satisfied leave should be granted on a without notice basis toissue a charging order and subsequently to request the registrar to issue a sale order.[13] Mr Farr is entitled to costs and disbursements on this application.Order[14] The draft order provides $5,605.91 as the amount to be charged. The order forcosts was sealed on 24 June 2014 in the sum of $3,876.00. Interest of $660.91 appliesto 21 November 2017. I am satisfied $5,605.91 is the proper amount reflecting as itdoes the costs judgment sum, interest and costs of this application._____________________________Karen Clark JSolicitors:Kevin McDonald and Associates, Auckland for Plaintiff1 High Court Rules, rr 17.1 and 17.3.2 R Chesney Ltd v New Zealand Dry Cleaners and Dyers Ltd [1958] NZLR 598 at 601.3 High Court Rules, r 7.46(3).