TRAINOR v LEOTUKI [2020] NZHC 3121

TRAINOR v LEOTUKI [2020] NZHC 3121 [25 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-002536[2020] NZHC 3121BETWEEN RONGOPAIWAHINE LOIS TRAINOR(formerly known as RAEWYN LOUISETOFILAU and also known as RAEWYNTRAINOR)PlaintiffAND TIMOTHY JUNIOR LEOTUKIFirst DefendantSTEVE TOFILAUSecond DefendantNICOLAU ALEX TOFILAUThird DefendantHearing: 16, 17 November 2020Appearances: N W Woods for PlaintiffU Kuddus for DefendantsJudgment: 25 November 2020JUDGMENT OF VENNING JThis judgment was delivered by me on 25 November 2020 at 4.00 pm, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors: Rice Craig, PapakuraInder Lynch Lawyers, PapakuraTABLE OF CONTENTSIntroduction [1]Background [5]Procedural history [19]The plaintiff's claim [25]The defendants' response [26]Witnesses [28]Issues [29]The deeds of debt [31]What was the family arrangement the defendants rely on? [40]Did the defendants provide any consideration? [63]Promissory estoppel [73]Acquiescence [96]Result – deeds of debt [103]Order for sale of the property [104]Extent of the share [106]Nature and location of the property [107]Other co-owners [108]Hardship [109]Contributions [110]Other matters [112]Orders [119]Costs [120]Introduction[1] This is a sad case. A mother is suing three of her four sons. At issue is a modestproperty at 29 Leaver Place (Leaver Place), Weymouth, which they all have an interestin, and the status of debts the sons owe their mother in relation to the property.[2] The case and the issues underlying it should have been capable of resolution.There was a settlement following an earlier mediation. Implementation of thesettlement agreement was, however, subject to finance, which the defendants were notable to obtain. Matters have subsequently broken down.[3] Rongopaiwahine Lois Trainor, also known as Raewyn Trainor, the plaintiff,seeks orders under the Property Law Act 2007 (the PLA) for sale of the property andalso judgment for the debts. Timothy Junior Leotuki and Steve Tofilau, the first andsecond defendants, agree the property has to be sold but seek a right of first refusal,and dispute any liability to the plaintiff in relation to the debts.[4] The third defendant has taken no steps since the mediation and is notrepresented. A fourth son, Taroi Tofilau, has settled all issues with his mother.Background[5] The plaintiff began living with Tim Tofilau (Tim Sr) in 1969. At the timeTim Sr was 40 years old. The plaintiff was 18 years old. They later married in June1971.[6] Raewyn and Tim Sr had four children – Timothy (Tim Jr), born 15 September1970; Steve, born 1 December 1971; Nicolau, born 7 April 1973; and Taroi, born 11July 1981.[7] Leaver Place was purchased and settled as a joint family home in 1975.[8] In 1983/1984 the plaintiff separated from Tim Sr and went to Australia. TimSr was responsible for the day-to-day care of the four boys from then on. The marriagewas dissolved in 1986.[9] The plaintiff remarried but separated from her second husband in 1992. Shereturned to New Zealand around 1994. From 2003 until about mid to late 2007 shewas living in rental accommodation at Castlefinn Drive, near Leaver Place. She thenwent fruit picking "down the line".[10] The plaintiff suffered from post-natal depression and has bi-polar disorder. Shehas also suffered further episodes of depression and has been admitted to hospitalpsychiatric wards on a number of occasions during her life.[11] By 2008, Tim Sr was diagnosed with cancer and was unwell. Mr Daisley, alegal executive from Whaley and Garnett, met with members of the family to discussthe ownership of Leaver Place which remained vested jointly in Tim Sr and theplaintiff. An agreement for sale and purchase was signed on 4 March 2008. Theagreement transferred Leaver Place from the ownership of Tim Sr and the plaintiff toTim Sr as to a half-share and to the four sons as tenants in common as to a one-eighthshare each. The consideration for the plaintiff transferring her one-half share was tobe provided by each of the sons signing an acknowledgement of debt for $34,125 (intotal $136,500), being one-half of the value of the property according to a QVvaluation from 2007.[12] Tim Sr died on 8 July 2008 before the transaction could be completed. Hisshare of Leaver Place vested entirely in the plaintiff by survivorship. On 21 July 2008,a second agreement for sale and purchase was signed. The terms of that agreementrecorded that the plaintiff transferred the property to her four sons in equal one-quartershares. The consideration was provided by each of them executing a deed ofacknowledgement of debt for $68,250 ($273,000 in total).[13] At the time, Tim Jr and Steve lived at Leaver Place. The plaintiff had alsoreturned to live there for Tim Sr's tangi. From 2012 to the present, Steve has beenliving at the property. Tim Jr has also lived there from time to time after 2008.[14] Shortly after the meeting with Mr Daisley at which the documents were signed,the plaintiff went to see another lawyer, Mr Sanders, and provided him with anauthority to obtain her files. On 4 August 2008, Mr Daisley forwarded a copy of theplaintiff's will, the July agreement for sale and purchase, and the original deeds ofdebt to Mr Sanders. In January 2009, Mr Sanders wrote to Mr Daisley noting that theplaintiff had not received independent legal advice and had been subjected to whatseemed to be an unconscionable bargain when she had agreed to transfer the property.Mr Sanders noted that the plaintiff was living in a garage on the property at LeaverPlace without running water or electricity.[15] About this time, the plaintiff left Leaver Place after a dispute with her sons.Mr Sanders retired from practice shortly after and nothing further was done. For thenext eight years the plaintiff lived at various addresses about the North Island and wasworking and able to look after herself.[16] Then, in 2017, the plaintiff took advice from another lawyer, Ms Hunter, whichresulted in letters of demand being sent, in September 2017, to the defendants and theirbrother Taroi calling up the debt.[17] In settlement of the plaintiff's claim against him in relation to the debt, Taroitransferred his one-quarter interest in the property to the plaintiff on 20 March 2018.[18] The plaintiff then issued proceedings in the District Court against theremaining defendants seeking an order for sale. When issues were raised as to thejurisdiction of that Court a similar application was filed in this Court. On 18 December2019, a mediation was held. A settlement was agreed, but its implementation wasconditional upon the defendants raising finance. That never happened.Procedural history[19] In July 2018, the plaintiff brought a summary judgment application in theDistrict Court seeking orders for sale of Leaver Place pursuant to s 339(1)(a) of thePLA. The defendants filed defences. During the course of the proceedings an issuewas raised as to the jurisdiction for the claim, as Leaver Place had a valuation of$530,000.[20] To address the jurisdictional issue a claim was also filed in this Court seekingorders for sale of the property under the PLA. The defendants failed to take any stepsto respond to the proceedings in this Court and the matter was allocated a formal proofhearing. At that hearing the defendants entered an appearance and sought leave todefend the claim. On 3 July 2020, Gault J declined to enter judgment by formal proofand granted leave to the defendants to defend on terms.1[21] In the meantime, on 7 March 2019, an amended statement of claim had beenfiled in the District Court. The amended claim pleaded the deeds of debt, demand bythe plaintiff, and sought judgment against each of Steve, Tim Jr, and Nicolau for theprincipal sum of $68,250, together with interest and costs.[22] The first and second defendants then filed statements of defence in this Courton 17 July 2020. On 3 August 2020, the District Court proceedings were transferredto this Court and consolidated with the proceeding in this Court.1 Trainor v Leotuki [2020] NZHC 1574.[23] There were then various pre-trial applications involving the admissibility ofevidence and an extension of time for the defendants to file their evidence.[24] The Court now has all issues before it for resolution, including the plaintiff'sclaim for judgment based on the deeds of debt transferred from the District Court andthe plaintiff's claim for orders under the PLA for the sale of the property and ancillaryorders.The plaintiff's claim[25] The plaintiff seeks:(a) an order for the sale of Leaver Place;(b) her share of occupation rent calculated at a rate of $450 per week from27 March 2018 to 27 March 2019 and at $500 thereafter until the dateof sale;(c) judgment in the sum of $68,250 against each of the first, second andthird defendants, together with interest; and(d) ancillary orders providing for the terms of sale of Leaver Place anddistribution of the proceeds of sale, after deduction from thedefendants' share of any judgment the plaintiff might obtain againsteach of the first, second and third defendants.The defendants' response[26] The defendants oppose the plaintiff's claim. The defendants say that a familyarrangement was made at the time the agreement for sale and purchase and deeds ofdebt were executed. That family arrangement was to the effect that the plaintiff wouldnever call up the debts. They say they acted in reliance on that family arrangement.They rely on positive defences of promissory estoppel and acquiescence.[27] Although the defendants also pleaded performance of the settlementagreement, during the course of the hearing Mr Kuddus confirmed that the defendantsno longer rely on the settlement agreement. That was a proper concession. Gault Jfound at the earlier hearing that a pre-condition of the settlement agreement wasfinance being obtained by 28 February 2020. The first and second defendants werenot able to obtain finance. The release of the defendants from the plaintiff's claim bythe settlement agreement was conditional upon the payment of the $200,000 by 21March 2020. That did not occur. The settlement agreement does not provide adefence.2Witnesses[28] The plaintiff gave evidence about the family relationships and thecircumstances leading to the execution of the agreement for sale and purchase and thedeeds of debt. She also called a real estate agent, Ms Matete, to confirm an estimateof the value of Leaver Place and its rental income. The first and second defendantsgave evidence about the family relationships and the execution of the agreement forsale and purchase and deeds of debt. They also called Mr Daisley, the legal executiveinvolved in the transactions in 2008.Issues[29] The issues the Court has to resolve are:(a) Whether an order for sale should be made under s 339 of the PLA?(b) Are the deeds of debt enforceable against the defendants or is theplaintiff estopped from calling the debts up because of a familyarrangement?(c) Is the plaintiff barred from pursuing her claim for judgment on the basisof acquiescence?(d) In the event the defendants are bound by the deeds of debt, should theancillary orders sought by the plaintiff be made?2 Trainor v Leotuki, above n 1, at [21].[30] Although the defendants opposed the plaintiff's claim for occupation rent,during closing submissions Mr Kuddus effectively conceded that, as a quarter ownerof the property since March 2018, the plaintiff would be entitled to a share of notionalrental from that time.The deeds of debt[31] It is convenient to first deal with the issue of whether the deeds ofacknowledgement of debt are enforceable against the defendants as a number ofconsequences flow from the finding on that issue.[32] The starting point is the documentation. In the agreement for sale and purchasedated 21 July 2008, the plaintiff agreed to transfer the property to her four sons inequal quarter shares for $273,000. The agreement provided:15.0 The purchase price shall be settled as follows:Timothy Junior Leotuki, Steve Tofilau, Nicholau Alex Tofilau andTaroi Roy Tofilau will sign Deeds of Acknowledgement of debt toRaewyn Louise Tofilau for $68,250.00 each making $273,000.00 intotal being half the value of the property according to an estimate fromQV valuations dated 7 May 2007.16.0 It is the intention of the parties that the transfer to the PurchasersTimothy Junior Leotuki, Steve Tofilau, Nicholau Alex Tofilau andTaroi Roy Tofilau shall not be a gift whether in whole or part withinthe meaning of the Estate and Gift Duties Act 1968 and it is herebyagreed between the parties that in the event of the value of the propertyas at the date of this agreement being finally determined for stampduty or gift duty purposes as a sum greater than $273,000.00 thereshall be deemed to be substituted for the said purchase price a sumequal to the value so determined.[33] Although cl 15 referred to the $273,000 being half the value of the property,that appears to be accepted as a common mistake. The QV valuation for the propertyas at May 2007 was $273,000. The reference to half the value of the property appearsto have been carried over from the earlier agreement for sale and purchase of 4 March2008 which dealt with the transfer of the plaintiff's one-half share at that time.[34] At the same time as the agreement for sale and purchase was executed on 21July 2008 each of the defendants and Taroi signed deeds of acknowledgement of debtin the plaintiff's favour acknowledging as follows:1. THAT the Borrower shall repay the said sum of $68,250.00 or thebalance thereof for the time being remaining unpaid to the LenderUPON DEMAND which expression shall have the meaning attributedthereto in the Fifth Schedule of the Chattels Transfer Act 1924.2. THE Borrower will on the 31st day of March in each year becomeliable to pay to the Lender interest on the said loan and furtheradvances from time to time outstanding. The interest payable shallnot exceed the first mortgage interest rate charged by the Lender'strading bank from time to time in respect of residential loans takingsuch rate applying at the preceding first day of October. Interest shallbe calculated with quarterly rests on the last days of March, June,September and December from the date of advance. No interest shallbe payable if the Lender shall fail to make written demand forpayment of interest by 30th June in any year.[35] The defendants say that, despite the express terms of the agreement for saleand purchase and the deeds of acknowledgement of debt, there was a familyarrangement that the plaintiff would forgive the debts and would never call up the debtexpressly acknowledged by them to be owing in respect of the transfer of the property.[36] There are a number of difficulties with that aspect of the defendants' case, bothlegally and factually.[37] First, they face the principle of estoppel by deed. An estoppel can arise fromstatements of fact in a deed. The estoppel is based on the principle that when a personhas made a statement of fact in a deed they will not be permitted to deny any matterthey have asserted in the deed.3[38] Although the Court did not apply the principle on the facts of the case beforeit, in Rabson v Gallagher the Court of Appeal acknowledged the principle of estoppelby deed and noted that it applied where an action was being taken on the deed, givingas an example a claim to recover a debt due by the other party to the deed.4[39] In Rabson v Gallagher the Court went on to cite its earlier decision ofMcCathie v McCathie in which case the Court had said:5There is of course no question that there is an ancient rule of law now far toofirmly established to be displaced other than by legislation, that in order to3 Halsbury's Laws of England (2014) vol 47 Estoppel at [317].4 Rabson v Gallagher [2011] NZCA 459, [2011] NZFLR 1040 at [85].5 McCathie v McCathie [1971] NZLR 58 (CA) at 61–62.support an assertion by a debtor that a debt was released by the creditor it isnecessary that the release should be enshrined in a deed unless considerationhas passed between the debtor and creditor. It is not enough that there shouldbe clear evidence of the release contained for example in a letter which passedbetween the two parties.Later in the McCathie case the Court cited with approval the following passage of SirGeorge Jessel MR from Strong v Bird:6First of all, it is said, and said quite accurately, that the mere saying by acreditor to a debtor, "I forgive you the debt", will not operate as a release atlaw. It is what the law calls nudum pactum, a promise made without an actualconsideration passing, and which consequently cannot be supported as acontract. It is not a release, because it is not under seal.What was the family arrangement the defendants rely on?[40] What, then, is the evidence the defendants rely on to respond to those legalhurdles?[41] The parties have quite different explanations for the transaction. Steve Tofilausays that in late 2007 Tim Sr mentioned the plaintiff wished to transfer her half-sharein the property to himself and his brothers in equal shares. He said he was pleased tohear their mother had "gifted" the property as they felt hard done by, owing to herabsence in their formative years. She had stated she was "pleased to be doing the rightthing". Steve Tofilau also said that following their father's death his mother re-initiated transferring her interest in the property to him and his brothers.[42] On the other hand, the plaintiff says she initiated the transfer in 2007 becauseshe was considering transferring her half-share to Taroi. At the time she was livingjust around the corner from Leaver Place in Castlefinn Drive. Her youngest son Taroiwas living at Leaver Place with his father. Taroi had been taking good care of hisfather in Tim Sr's retirement, taking him shopping and to the bank, sorting out hismoney and taking him to the doctor. Taroi would also visit the plaintiff. She wouldprovide meals to be taken back for Tim Sr. The plaintiff realised that Tim Sr was verysick. Taroi continued to care for him. The plaintiff said she began to think she shouldtransfer her half of the house to Taroi as a reward for what he was doing for his father.6 At 62, citing Strong v Bird (1874) LR 18 Eq 315 at 317–318.That then led to a discussion about transferring her share in the property to all foursons. The first agreement for sale and purchase was prepared and executed. Then,following Tim Sr's death, it was decided she would transfer the entire property to herfour adult sons. On the plaintiff's evidence, while ownership of the property at LeaverPlace was to be transferred to her sons, she never agreed to forgive the resulting debts.[43] The plaintiff's explanation as to the background to the transaction is the morelikely as it is clear from Mr Daisley's evidence that his initial instructions came fromTaroi, albeit that Mr Daisley considered Taroi to be passing on his mother'sinstructions. There was no mention of the plaintiff gifting the property to the sons inthe instructions.[44] Mr Kuddus cross-examined the plaintiff extensively about the familyarrangement. While she was confused about certain issues, she was very clear on thesequence of events; namely that she had initiated the transaction because she proposedto transfer her half-share to Taroi but that the arrangements subsequently changed.[45] The plaintiff was also firm in her evidence that she did not know anythingabout a family arrangement and that she never agreed that she would not call up thedebts. She said she was speaking to her youngest son Taroi about their personalrelationship concerning her share in the property. She thought it was between her andTaroi.7 She denied she told Mr Daisley and Steve that she wanted to do the right thing.When it was put to her that her recollection had failed her, she rejected the proposition.She said her recollection about that matter was quite good and that she knew what shewas doing. She said she was advised by Mr Daisley that the property could not betransferred just to Taroi, and it was probably better to transfer her share at the time toall of the boys rather than just Taroi.[46] The next issue is why the transaction was structured the way it was.[47] Steve said Mr Daisley explained at the time that the plaintiff could not transferthe interest in the property outright as she would be subject to the gift duty regime.He said Mr Daisley suggested, and it was agreed by all, that they would sign the7 Notes of evidence at pp 26–27.agreement for sale and purchase and the deeds of acknowledgement of debt. This wasthe family arrangement the defendants rely on. Steve said the arrangement was thatthe plaintiff would never call upon the debts recorded in the deeds and the debts wereto be released over time. Steve said that was because his mother wanted toacknowledge her lack of contribution to the property and to their upbringing.[48] The references in Steve's evidence-in-chief to the family arrangement werevery general. There was no detail of when the arrangement was made, who waspresent, where agreement was reached, or any information of that sort. During hisevidence-in-chief, counsel sought to supplement Steve's evidence with the followingquestion:Q. How do you know that you were all on the same page with respect tothe deeds not being – the debts not being repaid?A. There was talk amongst ourselves because Mum had arrived at thehouse shortly after Dad's passing on the 3rd. She was welcome tostay inside the house. She was there approximately, probably threeweeks, so there was a lot of discussion amongst my brothers and mymother regarding the steps or the procedures that were going to be inplace, in order for her to ultimately fulfil Dad's expectations of givingthe house to us four boys, which – so my mother being at the housefor those three weeks, there were just talk about Dad and his past andlooking at the future and that, and so that's how it came about withdiscussing that, the deeds of debt were only in place or to be signed toget away from the gifting tax, [49] Even that further detail was general. Of note, it was not put to the plaintiffwhen she was cross-examined.[50] Tim Leotuki (Tim Jr) also gave evidence. Tim Jr confirmed that he relied onthe statements recorded in Steve's evidence.[51] The plaintiff said she must have been contacted by Mr Daisley with a view tocompleting the transaction. She thought the agreement had been completed earlierthan 29 July. She said that she was taken by her sons to Mr Daisley's office. She wastold the documents were straightforward, pertaining to shares in the house, and all thatwas required was her signature. She said at the end of the signing process at Whaleyand Garnett's office, she stood up and said she was not happy. But no-one respondedso she left the office. She never received the copy of the valuation report that wasreferred to.[52] The plaintiff accepted that, while she knew she had lost ownership of the house,and the boys owed her money in exchange, she did not understand the detail of thetransaction and Mr Daisley did not explain it to her. Everything was undertaken at atime when she was still grieving. At that stage she was mentally unwell and on asickness benefit.[53] Further, the evidence does not support the defendants' premise that the plaintiffwas willing to transfer the property and gift the debts because she had not contributedto the property. The plaintiff confirmed that during the early years of her and Tim Sr'srelationship and marriage, she went to night school and then obtained a job withDatabank, working a night shift. She and Tim Sr were able to buy Leaver Placethrough the Department of Maori Affairs, which was only possible because she wasMāori. She also contributed to the household and maintained the property while shelived there from 1975 to 1982/83. She rejected the suggestion that she had notcontributed to the property at all.[54] I prefer the plaintiff's evidence as to the circumstances of the execution of theagreement for sale and purchase and the deeds, even though she may have got the datewrong. The plaintiff was clearly unhappy with what had occurred as evidenced by herinstruction of Mr Sanders shortly afterwards in late July or early August 2008.[55] The defendants also rely on the evidence of Mr Daisley. Mr Daisley's evidencewas unsatisfactory in a number of respects. Strangely, although the Court made anorder at the outset of the evidence of the plaintiff (which was repeated at the start ofthe second day's hearing) excluding witnesses who were not parties to the proceeding,Mr Daisley remained in the Court and was then able to hear the plaintiff's evidenceand cross-examination. When it became apparent Mr Daisley had remained in Courtdespite the exclusion order, Mr Woods objected to Mr Daisley giving evidence. I ruledthat Mr Daisley could give evidence but indicated the Court would take into accountthat Mr Daisley had remained in Court despite the exclusion order when assessing andgiving weight to Mr Daisley's evidence where it conflicted with that of the plaintiff.The issue was highlighted when, during the course of his cross-examination, MrDaisley actually referred to evidence given by the plaintiff when seeking to bolster hisevidence on a point.[56] As to the family arrangement Mr Daisley said:10. In early 2008, a Transfer to convert ownership to tenants-in-commonand Deeds of Acknowledgement of Debt were prepared. They weresigned on 9 February 2008. It was explained to all parties that Raewyncould not simply transfer her half interest as that would constitute agift and would be subject to gift duty. There needed to be Deeds ofAcknowledgement of Debt from the four boys to Raewyn, eventhough it was understood she never intended to call in the debt. Thiswas explained to Raewyn by me and the sequence of documents wasalso explained carefully. I was very aware that the procedure was noteasy for a lay person to follow. Raewyn confirmed that she wanted totransfer her interest to her four sons and would not call in the debts.[57] He said that following the death of Tim Sr:13. I then met Raewyn and her sons at our offices on 21 July 2008 andonce again the new transaction was carefully explained and signedstep by step whereby Raewyn would transfer her full interest to herfour sons equally. The parties agreed to these arrangements and theywere clear that this constituted their "family arrangement".14. Again, Deeds of Acknowledgement of Debt were executed by eachson to avoid the gifting duty, however I confirm it was never theparties' intentions that the debts would be called upon or repaid. Nogifting programme or Deeds of Forgiveness of Debt were carried outgiven the family relationships involved.17. Raewyn initiated the entire process and wanted to transfer her interestin the property to her four sons in view of the fact that she left thefamily and had little to do with her sons' upbringing. If gift duty hadbeen abolished at that time, there would have been no loandocumentation. Her interest would have gone to the sons outright.18. I regarded this whole matter as a family transaction, and the sons gaveup potential claims against Raewyn in respect of the property, and viaTim [Sr's] Estate.[58] Despite Mr Daisley's evidence that he explained the documents to the plaintiff,I am satisfied the plaintiff did not fully understand the import of the documents. Therewas a clear conflict of interest, which Mr Daisley failed to recognise, in that theplaintiff was transferring a property to her four sons in circumstances where she wasnot receiving any money but rather was receiving acknowledgements of debt. AlsoMr Daisley was unaware of the plaintiff's mental health issues. He was unable tosatisfactorily answer those issues. Further, during cross-examination Mr Daisleyaccepted that he dealt directly with Taroi, not the plaintiff, about the transaction. Giventhat the transaction led to a transfer of the plaintiff's interest in the family home, it isnotable that Mr Daisley did not take instructions from her directly or refer her forindependent advice given he was acting for Taroi and his brothers.[59] The thrust of Mr Daisley's evidence on the main point was that the agreementfor sale and purchase and the deeds of acknowledgement of debt were only preparedto avoid liability for gift duty and did not record the actual agreement between theparties. Although Mr Woods put to him that the documents were a sham, documentsare only a sham if all parties to the transaction intend to create different rights andobligations from those evidenced by the document.8 In this case the plaintiff considersthe documents do reflect the actual agreement so they are not a sham. Nevertheless,the point is that Mr Daisley accepted he was prepared to draft documents with theintent and purpose of evading liability for gift duty. His reason for not recording thesupposed family arrangement in writing was not convincing. He said he did not dothat as there would then be two contradictory written documents. He seemed toconsider there was no contradiction or issue with there being two contradictoryagreements provided one was only an oral agreement.[60] Mr Daisley's subsequent actions (or inaction) do not support his evidence that,despite the express wording of the documents, the plaintiff was gifting the purchaseprice to her sons. For example, there was no reporting letter to the parties setting outthe arrangement and no gift statements were ever prepared.[61] I consider that, regrettably, Mr Daisley's evidence also contained elements ofex post facto reasoning to justify his own actions at the time.8 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2NZLR 289 at [33]; and Snook v London & West Riding Investments [1967] 2 QB 786 (CA) at 802.[62] In conclusion on this point, I do not accept that there was a family arrangementor an agreement consented to by the plaintiff that she would never call up the debts orthat she would forgive them.Did the defendants provide any consideration?[63] I turn to the issue of whether the defendants provided any consideration for thealleged forgiveness of debt by the plaintiff.[64] The defendants suggest that the consideration for the plaintiff releasing themfrom their obligations under the deeds of debt was that they gave up the opportunityof pursuing claims against her on behalf of their father's estate under the Property(Relationships) Act 1976 and/or for arrears of child support.[65] The first obvious point is if the defendants were indeed giving up rights to suchclaims, that could have been recorded in the documentation at the time to either reduceor satisfy the sale price. There is no evidence of any such demand or discussionbetween the parties at the time the agreement for sale and purchase and deeds of debtwere entered.[66] It was not put to the plaintiff in cross-examination that there was such adiscussion with her as part of the transaction. The defendants' case, as put to theplaintiff, was that she had transferred the property to her sons (and forgiven the debtback) because it was the right thing to do.[67] Mr Daisley said in very general terms that the sons gave up claims but he didnot provide any details. The evidence there is about such claims is vague, and in thecase of Mr Daisley appears to have been raised for the first time after the event, in anemail to Taroi in February 2009. That email was sent on receipt of the letter from MrSanders of 27 January 2009. Mr Daisley asked Taroi the following questions:1) Whose idea was it in the first place for your mother to transfer hershare of the house to you and your brothers? If it was your mother'sidea, when did she first suggest it and how did the idea come up? Ifit was the idea of you or Steve, what did you say to your mother andwhat was her reaction. Or was it your father's idea?6) Tell me about the Child Support Payments? From what date did yourmother start paying them? Do you know how much she owes?The reason for these questions is to counter the bit about a RelationshipProperty Claim.As mentioned, your mother could make things difficult if she called up theloans or demanded interest. That is partly why I would like to know howmuch she owes IRD for Child Support.[68] The clear inference from this email is that Mr Daisley was concerned at thesuggestion the plaintiff (rather than Tim Sr's estate) might have had a relationshipproperty claim. It further suggests that the parties had not given up a claim in relationto child support in order to enter the agreement because Mr Daisley was seekinginformation about that issue for the first time, some months after the event.[69] To the extent the defendants rely on an argument that they relinquished theopportunity of pursuing a claim under the Property (Relationships) Act 1976 on behalfof their father's estate against the plaintiff, there are a number of other difficulties forthem apart from the lack of an evidentiary foundation.[70] Only the personal representative of the deceased may apply for orders underthe Property Relationships Act. Probate was never obtained for Tim Sr's last will. Topursue a claim in relation to the previously jointly owned property that had passed tothe plaintiff as the surviving spouse would require leave under s 88(2).9 Thedefendants would have to show serious injustice. At the time of Tim Sr's death thedefendants were all adults and in employment. While they were beneficiaries underhis will, the test of serious injustice is high.[71] Similarly, there is no evidence that moneys due from the plaintiff to Tim Sr'sestate for past maintenance were foregone. Mr Kuddus pointed to a reference in aletter in 1989 which suggested the possibility of a claim at that time. But there wasno suggestion that by 2008 there could be such a claim. By then of course Steve was36 and Tim was 37.9 Property (Relationships) Act 1976, ss 88(2); Kennedy v Kennedy [2017] NZHC 168; and ReWilliams [2004] 2 NZLR 132 (HC).[72] I reject the defendants' suggestion that they provided any consideration to theplaintiff in exchange for the plaintiff forgiving their debts.Promissory estoppel[73] To overcome the problem of a lack of consideration the defendants nextsuggest that there was a promissory estoppel which prevents the plaintiff from nowpursuing or relying on the deeds of debt.[74] The four requirements to make out a promissory estoppel are:10(a) the creation or encouragement of a belief or expectation;(b) reliance on that belief or expectation;(c) detriment as a result of that reliance; and(d) that it would be unconscionable for the party against whom the estoppelis alleged to go back on his or her word.[75] For the first requirement there must be clear words or conduct by one partywhich creates a belief or expectation in the other. On the defendants' case, the beliefor expectation was created prior to entry into the agreement for sale and purchase andthe deeds of debt, as the arrangement was the reason they were created. For the abovereasons, the defendants face difficulties in this regard on the evidence. Further, as theCourt of Appeal observed in Hickman v Turn and Wave Ltd:11[213] In a contractual setting, a promissory estoppel argument morecommonly arises post-contract when one party promises the other that anexisting contractual provision will not be enforced. It is well established thata pre-existing contractual relationship is not necessary before promissoryestoppel may operate. But it is less common and more difficult to establishpromissory estoppel on the basis of a pre-contractual promise orrepresentation. This is because the party seeking to establish therepresentation faces obvious evidential difficulties in proving a promise not toenforce a contractual provision when that party subsequently signs a contractin which he or she agrees to perform the relevant obligation notwithstanding10 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567 at[44]. See also Engini Ltd v NZNet Internet Services (in liq) [2016] NZHC 1220.11 Hickman v Turn and Wave Ltd [2011] NZCA 100, [2011] 3 NZLR 318 (footnotes omitted).the claimed promise that he or she would not have to do so. In suchcircumstances, statements made in pre-contractual negotiations may beovertaken and contradicted by the written contract.[76] In the course of that passage the Court referred to the decision of Krukziener vHanover Finance Ltd where the Court had said the following about promissoryestoppel:12[37] Promissory estoppel was traditionally concerned with promises torefrain from exercising pre-existing contractual rights: Ajayi v R T Briscoe(Nigeria) Ltd [1964] 1 WLR 1326 (PC). The promise had to be clear andunequivocal: Woodhouse AC Israel Cocoa Ltd SA v Nigerian ProduceMarketing Co Ltd [1972] 1 AC 741 at 768 (HL). The legal rights weresuspended, and might be resumed on giving notice, so long as the promiseecould resume its former position: Motor Oil Hellas (Corinth) Refineries SA vShipping Corporation of India [1990] 1 Lloyd's Rep 391 at 399 (HL).[38] Following the decisions of the High Court of Australia in WaltonsStores (Interstate) Ltd v Maher (1988) 164 CLR 387 and The Commonwealthof Australia v Verwayen (1990) 170 CLR 394, promissory estoppel is nolonger confined to promises affecting pre-existing rights. However, thedeparture from a voluntary promise is not unconscionable in itself, even ifdetriment results. Rather, equity responds to the defendant creating orencouraging an assumption in the plaintiff, and its knowledge that the plaintiffwill rely on the assumption to its detriment. The plaintiff must have been ledto believe that the promise would affect or result in legal relations; thus apromise made in negotiations that are subject to contract will not lead to anestoppel: Waltons Stores at 406 and 422. Lastly, equity does not intervene tosatisfy the promise, but to avoid the detriment. These requirements in thecurrent authorities, as the High Court recognised, are seen as necessary topreserve the law of contract as the principal mechanism for the enforcementof promises.[39] In this case, Mr Krukziener would have it that a representation wasmade in pre-contractual negotiations, and that to Hanover's knowledge heacted to his detriment by entering into the contract on terms inconsistent withthe representation. He relies on the negotiations, in other words, not to showa voluntary promise to refrain from existing pre-existing rights, nor to showthat Hanover promised to create a new legal relationship, but to contradict thecontract that followed the negotiations.[40] In these circumstances, Mr Gilbert recognised that the defence ofpromissory estoppel faces difficulties. Even if true, the facts asserted by MrKrukziener could not establish a promissory estoppel. The doctrine isconcerned with circumstances in which the Court will enforce a voluntarypromise to create legal relations, or to refrain from exercising pre-existinglegal rights. Where negotiations result in a contract, the promises exchangedare no longer voluntary, and the question whether the contract will be enforcedfalls to be determined under the law of contract. We conclude that the defenceof promissory estoppel is not available in law.12 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162.[77] The passages in [39] and [40] from Krukziener are directly applicable to thepresent case. The defendants seek to rely on pre-contractual discussions, not to showa promise by their mother to refrain from exercising pre-existing rights, but rather tocontradict the express terms of the subsequent agreements for sale and purchase andthe deeds of acknowledgment of debt.[78] The family arrangement alleged is that the plaintiff agreed she would not callup the debts despite the express terms of the agreement for sale and purchase and thedeeds of acknowledgement of debt.[79] The evidence of the witnesses and documentary evidence taken overall leadsme to conclude that the issue of whether the loans would ever be called up was notdirectly addressed at the time. Certainly there was no such family arrangement orrepresentation by the plaintiff that they would never be called up in the future. Thefocus was on transferring the property to the sons without the sons having to, at thattime, part with any money to achieve that result.[80] Apart from the above reasons, there are a number of other aspects to theevidence that support such a conclusion. First, there was Mr Daisley's email to Taroiin early 2009 seeking further instructions from him to effectively bolster and shore upthe rationale for the transaction, which as noted, concluded with the followingcomment:As mentioned, your mother could make things difficult if she called up theloans or demanded interest. That is partly why I would like to know howmuch she owes IRD for Child Support.[81] There was no suggestion in that communication that the plaintiff had given upthe right to call up the debts. During cross-examination of Mr Daisley about the emailthere was the following passage:Q. But even if I take you to your email of the 5th of February 2009 again,which is at page 571, if I take you to the end of that 572 penultimateparagraph, there you write to Taroi as follows: "As mentioned, yourmother could make things difficult if she called up the loans ordemanded interest." So is it right to say that as at February 2009, itwas your understanding that Raewyn Trainor had the right to call upthose loans and demand interest?A. Yes, yes.[82] Even before the formal demands were made, when Ms Hunter requested thefiles from Mr Daisley earlier in 2017, he replied by email of 28 April 2017. His emailincluded the following:5. Copies of the loan documents between Raewyn and her sons. Theloans have not been forgiven.The wording suggests the loans were still owing rather than forgiven. Mr Daisley'sexplanation for using such terminology was not convincing.[83] Next, the defendants accept that Taroi was the one who contacted Mr Daisleyand appears to have initiated the transaction and instructed him as to the plaintiff'swishes. It might be assumed he had the best understanding of all the brothers aboutthe transaction. It is relevant that in those circumstances Taroi did not oppose theplaintiff's demand for repayment of the $68,250 but rather, in satisfaction of herdemand, he transferred his one-quarter share in the property to the plaintiff. Theinference to be drawn from that is that he accepted the plaintiff was able to make thedemand.[84] Next, if the defendants' position was that it was the clearly understoodagreement that the defendants were never to have to pay the debts' demand, one wouldhave expected them to have immediately responded in that way when Ms Hunter madedemand for the $68,250 on 4 September 2017. However, neither Steve nor Tim Jrresponded by saying there was a family arrangement that the debts would never becalled upon, or that the property had been an outright gift.[85] Steve Tofilau's first response was an email of 28 September in which he said:Apologies for the delay in responding to your communication.We have had trouble coordinating a response, concerned parties are inAustralia and Japan and it has been difficult to organise.Certainly hoping to come to a resolution as soon as possible and we thank youfor your patience. Mediation will be ideal to find a resolution that each partywill find equitable for all.[86] Then later, in response to a further letter to the current defendants on 25 June2018, in which Ms Hunter advised proceedings would be commenced as there hadbeen no further progress, Mr Daisley wrote on behalf of Tim Jr. His response was inthe following terms:We have been contacted by Tim Tofilau who tells us that he and his twobrothers will try and raise a mortgage over 29 Leaver Place to repay the debtsthey owe your client.Would you please confirm that you are acting for Ms Trainor.We do not have a timeframe. The Tofilaus are working through a mortgagebroker.[87] Again, there was no suggestion that the debts were not repayable upon demandor that there was any family arrangement. Indeed, the email expressly states, andrecords an action which acknowledges, the debt was owing.[88] On 6 November 2018 Steve Tofilau sent an email direct to Ms Hunter:Tim and I are offering 300,000 to my mother as final payment.Based on finances from bank.We have conditional offer from bank based on a few conditions.If this fails we will be going to bank to sort out another proposal.We have been liaising with brokers for the last few months.Now I heard my other brother has signed his share over.Can please inform my mother of our offer.[89] There followed the mediation meeting which led to the agreement for paymentof $200,000 to the plaintiff by the defendants and an additional $50,000 to be paid byWhaley and Garnett to the plaintiff.[90] Finally, on this aspect of the evidence, during the course of the hearing MrKuddus introduced text messages that had passed between the plaintiff and Steve. Thetext messages became admissible. The messages from the plaintiff include thefollowing:Steve I told you to email jane an you tim nick owe me what is on the papersthat I signed nothing else what r u doing if it goes go court you may be payinga lot more.What you an tim want me to do is out of the question I just want my moneyyou 3 owe meThat house is your problem to fix it even Taroi says it's wrong to make mepay for it clean up the garage an fix it upOn 29 August the plaintiff sent the following message:You must pay what you 3 owe me that's itAnd Steve replied:3x 67,000 = 200,000 you choose what you want to build, we don't have a say,it's what you decide, we told you that on Sunday.[91] Then on 4 November a message from Steve:I'm so glad we spoke today mum, so nervous and worried about the sale ofthe house. Now we can move forward together as a family. 300,000 our finalsettlement. glad we talked and cried haha so much Better. xx[92] The last message was consistent with Steve's email to Ms Hunter on 6November 2018. Again, not even in the informal messages passing between Steve andhis mother was there any reference to the loan never having to be repaid.[93] Finally, and in any event, the defendants have not acted to their detriment byentering the agreements for sale and purchase, the deeds of debt and by spending thelimited amounts they have on the property.[94] Steve says that had he known the debts were not forgiven and his mother wouldseek repayment, he would not have entered the family arrangement and would nothave spent time, money and effort on the property. However, there was a direct benefitto him and his brothers in the transaction. The price was fixed at its 2007 value andthe property was transferred to him and his brothers without them having to payanything for it at that time. The property was theirs to deal with in whatever theywished. They have had the benefit of the property from 2008 on.[95] The defendants are not able to establish that the plaintiff created or encourageda belief or expectation that they would not have to repay the debt or that they relied onany such belief or expectation to their detriment. For the foregoing reasons also, thedefendants fail to satisfy the Court they relied on any such representation in any event.They gave nothing up, they simply improved their position by gaining a share in aproperty without having to pay for it. The claim that the plaintiff is estopped fromenforcing the deeds of acknowledgment of debt is not made out.Acquiescence[96] The defendants also plead acquiescence as a positive defence. They plead theplaintiff acquiesced to the family arrangement and delayed in seeking to enforce thedeeds for nine years so that it would now be unconscionable for her to seek to enforcethe debts.[97] To the extent that the acquiescence relies on the family arrangement, it mustfail on the evidence for the above reasons.[98] Further, at no time has the plaintiff said or given any reasonable cause for thedefendants to believe that she would waive, surrender or forego her right to call up thedebts.[99] The plaintiff has explained why she did not immediately call up the debts. Shedid not pursue matters with Mr Sanders as, about the same time as Mr Sanders receivedthe reply from Mr Daisley on 18 March 2009, he told her he was unwell and wasretiring from the practice.[100] At that time in 2009, the plaintiff was still in employment and did not need themoney. The plaintiff simply did not have the need to call the debts up earlier as shewas in employment and, while living in constrained financial circumstances, was ableto look after herself. That is no longer the case. She has been made redundant andnow needs the money. The defendants have enjoyed the benefit of living in theproperty without having to raise money to pay out the plaintiff for a number of yearsand have enjoyed the inflationary increase in the value of the property.[101] The fact the plaintiff has not acted to call up the debts for nine years or so isalso irrelevant. The debts were repayable upon demand. The Limitation Act 2010makes it clear that the limitation period only begins to run once a demand is made.13While in some cases acquiescence (or laches) may bar a claim on equitable grounds,even where time has not expired under the Limitation Act, the converse can also be13 Limitation Act 2010, s 5(1)(a).true.14 A claim barred by the Limitation Act may not otherwise have been barred byacquiescence.[102] In this case the pleading of acquiescence adds nothing to the defendant'spleading of promissory estoppel. As the defendants cannot make out a promissoryestoppel, the pleading of acquiescence cannot succeed either.Result – deeds of debt[103] The plaintiff is entitled to judgment against each of the three defendants for theprincipal sum owing by them to her of $68,250, together with interest at the rate of5.75 per cent from 1 April 2018.15Order for sale of the property[104] I turn to the remaining orders sought. The application for orders for the saleof the property is made under s 339 of the PLA. On an application by one co-ownerthe Court may make any one of the following orders:(a) for the sale of the property and the division of the proceeds among theco-owners; or(b) for the division of the property in kind among the co-owners; or(c) requiring 1 or more co-owners to purchase the share in the propertyof 1 or more other co-owners at a fair and reasonable price.[105] The Court may only make one of the above orders having regard to the mattersin s 342:342 Relevant considerationsA court considering whether to make an order under section 339(1)(and any related order under section 339(4)) must have regard to thefollowing:(a) the extent of the share in the property of any co-owner bywhom, or in respect of whose estate or interest, the applicationfor the order is made:14 Official Assignee of Collier v Creighton [1993] 2 NZLR 534 (CA); and Matai Industries Ltd vJensen [1989] 1 NZLR 525 (HC).15 The plaintiff's evidence was the bank rate as at date of demand was 5.75 per cent.(b) the nature and location of the property:(c) the number of other co-owners and the extent of their shares:(d) the hardship that would be caused to the applicant by therefusal of the order, in comparison with the hardship thatwould be caused to any other person by the making of theorder:(e) the value of any contribution made by any co-owner to thecost of improvements to, or the maintenance of, the property:(f) any other matters the court considers relevant.Extent of the share[106] The plaintiff is an owner as to a quarter-share.Nature and location of the property[107] The property is a residential property in Weymouth.Other co-owners[108] The first and second defendants each own a quarter. The third defendant alsoowns a quarter but has taken no steps to see the matter resolved and has not appearedto oppose the plaintiff's claim.Hardship[109] The plaintiff is currently in an entirely impoverished state. The only way theplaintiff can be repaid the moneys she is owed, and needs to provide for herself, isfrom the proceeds of sale of the property. Against that, a sale of the property will leadto a degree of hardship to the first and second defendants, the second defendant inparticular, having regard to the fact it is his home.Contributions[110] The second defendant produced evidence of some expenses spent about theproperty. They are modest and only of the sort of maintenance and general expensesone would expect a homeowner to incur in order to maintain the property generally.Apart from those expenses the annual rates and insurance would be significantly lessthan the accommodation costs or rental that could have been achieved from theproperty.[111] The short point is that since 2008 the defendants have had the use andenjoyment of the property without having to pay to acquire it. Apart from the usualoutgoings of rates and insurance, the other matters that they have raised and seekcompensation for are matters such as painting and installation of security systems.Painting would usually be carried out as part of the regular maintenance and upkeepof a property. Further, they have had the absolute and unfettered right to use theproperty for their own ends until at least the plaintiff obtained her one-quarter interest.The Court is not minded to make any allowance to the defendants for the lengthyperiod of time they have enjoyed the property, paying only rates, insurance and modestmaintenance towards it. There have been no significant capital improvements madeto the property.Other matters[112] As noted, without the sale there is no other basis or means for the plaintiff tobe paid out. The parties are at an impasse. Importantly, the defendants now acceptthe property will have to be sold. Mr Kuddus confirmed that the defendants do notoppose an order for sale.[113] The Court is satisfied that orders for the sale of the property are appropriatedespite the effect on the first and second defendants in particular. I do not consider itrealistic to provide for the defendants to have right of first refusal to purchase theplaintiff's quarter-share with the third defendant's share held in trust while thedefendants obtain finance to purchase that as well. The first and second defendantshave had ample opportunity to resolve the issue but were unable to come to anarrangement with the third defendant or obtain finance to purchase the plaintiff'sshare. I am satisfied that it is appropriate to exercise the discretion in favour of theplaintiff and to order the sale of the property.[114] The issue is whether the ancillary orders sought by the plaintiff should bemade. Section 339(4) confirms that on an order for sale, the Court may make a furtherorder specified in s 343.[115] Section 343 provides:343 Further powers of courtA further order referred to in section 339(4) is an order that is made inaddition to an order under section 339(1) and that does all or any ofthe following:(a) requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners:(b) fixes a reserve price on any sale of the property:(c) directs how the expenses of any sale or division of theproperty are to be borne:(d) directs how the proceeds of any sale of the property, and anyinterest on the purchase amount, are to be divided or applied:(e) allows a co-owner, on a sale of the property, to make an offerfor it, on any terms the court considers reasonableconcerning—(i) the non-payment of a deposit; or(ii) the setting-off or accounting for all or part of thepurchase price instead of paying it in cash:(f) requires the payment by any person of a fair occupation rentfor all or any part of the property:(g) provides for, or requires, any other matters or steps the courtconsiders necessary or desirable as a consequence of themaking of the order under section 339(1).[116] In terms of distribution of the proceeds, the plaintiff seeks orders that thequarter-shares of the defendants be held in trust and money owing to the plaintiff bededucted from the moneys due to the defendants before their shares are paid out tothem.[117] While such orders are not commonly made, I accept they are appropriate inthis case. The alternative would be to leave the plaintiff to have her advisers issuecharging orders against the proceeds of sale in the solicitor's trust account whichwould only add to the legal costs of all parties and further reduce the net sum availableto all the parties.[118] The plaintiff also seeks rental for the use of the property from the time thatTaroi transferred his one-quarter share in the property to her in March 2018. Ms SusanMatete's evidence confirms the rental at $450 a week to 31 March 2019, and thereafter$500 per week. To 31 December 2020, the notional rental would total $68,500.However, a deduction to recognise the plaintiff's notional one-quarter share of ratesand insurances is appropriate. At say, $4,000 per year for such expenses, the net rentalwould be approximately $57,500. The plaintiff's one-quarter share is $14,375 to 31December 2020. Given other costs and expenses associated with tenants, that seemsa reasonable figure for the rental due to the plaintiff for her quarter-share of theproperty.Orders[119] I am not prepared to make an order for a right of first refusal in favour of thefirst and second defendants. If the defendants are able to organise their circumstances,they can bid at any auction or make an offer. However, given the history to this matterand the age of the plaintiff, any further delay should be avoided. There will be ordersin terms of the draft attached.Costs[120] Both counsel agreed that costs should follow the event. Mr Woods argued forindemnity or increased costs from the date of the mediation. I accept, however, thatthe first and second defendants were not able to resolve the issues at mediation becauseof complications with the third defendant. While the concession that the propertyshould be sold came late in the piece, the main focus was always going to be on themoneys owing under the deeds of acknowledgment of debt. I do not accept thedefendants' actions are such that they warrant an award of anything other than scalecosts on that issue. Further, given the background circumstances to this case, I am notprepared to make such an order. The defendants are, however, jointly and severallyliable to pay the costs of the plaintiff on a 2B basis together with disbursements asfixed by the Registrar.__________________________Venning JGENERAL COURT ORDERBefore the Honourable Justice VenningAfter reading the Statements of Claim, and the Statements of Defence filed, and afterhearing of the Application and Umar Kuddus Counsel for the Defendants and NevilleWoods Counsel for the Plaintiff, this Court orders:1. The property at 29 Leaver Place, Weymouth, Manukau, more particularlydescribed as an estate in fee simple containing 638 square metres more orless being Lot 42 Deposited Plan 70363 being all the land comprised anddescribed in Identifier NA27 A/657 (North Auckland Land Registry), be soldand the net sale proceeds thereafter be distributed amongst the parties inaccordance with their legal share(s) in the property, subject to paragraph 2below.2. Pursuant to Section 339(4) and 343 of the Property Law Act 2007:(a) Barfoot & Thompson shall be appointed the sole and exclusive agencyin relation to the sale of the property. Barfoot & Thompson shall providethe parties with an appraisal and proposed particulars and conditionsof sale of real estate by auction/private treaty for the parties'consideration on or before 1 December 2020 with the sale programmeto provide for a sale no later than 20 January 2021.(b) Andrew Hopping, Registered Valuer of Marsh & Irwin Limited, or suchperson as he directs, is to be appointed the registered valuer to:(i) Provide a registered valuation.(ii) Set a recommended sale price on the basis of market value asdetermined by Marsh & Irwin under current market conditions.(c) The property shall be sold by private auction or by private treaty, eitherbefore or after such auction with the recommendation of AndrewHopping that the best price is achieved being final and binding uponthe parties.(d) Any party may purchase the property by private treaty and any partymay bid at the auction of the property.(e) Marsh & Irwin shall, in consultation with Barfoot & Thompson,nominate a reserve price for the property, such reserve price beingfinal and binding upon the parties.(f) Rice Craig, Solicitors of Papakura, shall be appointed to act as thevendor's solicitor in relation to the sale of the property.(g) The Defendants shall do all things reasonably necessary to affect thesale of the property, and more specifically:(i) at reasonable times make the property available to beinspected by prospective purchasers; and(ii) sign all documents required to complete AML requirements;and(iii) sign the required A & I form to transfer the said property; and(iii) sign all and any Agreement for Sale and Purchase as soldunder this Order.(h) The reasonable expenses of sale and readying the property for saleare to be borne by the parties in proportion to their respective legalshare(s) in the property.(i) The First and/or Second Defendant may continue to occupy theproperty to the date of settlement (the property being sold with vacantpossession), on the basis that the occupant(s) meet payment of allrates, water charges, insurances and other outgoings payable inrespect of the property running from the date of judgment until the dateof settlement.(j) That on the settlement date the Defendants shall cease to occupy theproperty and henceforth surrender possession (subject to the vendorswritten consent or otherwise).(k) The proceeds of sale of Leaver Place, net of land agent's fees, GST,legal fees and disbursements and any other costs incurred to achievethe sale, shall be divided into four equal shares with three of suchshares applied to pay for:(i) Any rating, electricity, water rates and insurance outgoingsrequired to be met upon settlement of the sale equally fromeach of the shares;(ii) The sum of $68,250 (against each named Defendant severally)plus interest on $68,250 at a rate of 5.75% per annum runningfrom the 1st of April 2018 to the date of settlement, deductedfrom each of the shares and paid to the Plaintiff;(iii) The occupation rental and costs specified in paragraphs (m)and (n) below, to be met in equal shares upon settlement of thesale and paid to the Plaintiff. The balance, if any, to be paid inequal shares to the Defendants.(l) And further the fourth such share, together with the sum in (k) above,and in addition any costs due to her and any occupation rent asspecified below, to the Plaintiff.(m) Judgment to the Plaintiff in the sum of $14,375 in compensation formarket occupation rental.(n) Costs as directed by the Court on a 2B basis plus disbursements asfixed by the Registrar.3. Leave is reserved to the parties to apply for further directions regarding theimplementation of these Orders.Dated:Deputy Registrar