THE OFFICIAL ASSIGNEE IN BANKRUPTCY IN THE ESTATE OF MARK ESDOT v PEACHEY [2018] NZHC 1949

THE OFFICIAL ASSIGNEE IN BANKRUPTCY IN THE ESTATE OF MARK ESDOT v PEACHEY [2018]NZHC 1949 [1 August 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-428[2018] NZHC 1949UNDER Sub-pt 5 of pt 6 of the Property Law Act2007BETWEEN THE OFFICIAL ASSIGNEE INBANKRUPTCY IN THE ESTATE OFMARK ESDOTPlaintiffAND COLLEEN ANNE LILA PEACHEYDefendantHearing: 31 July 2018Appearances: D Kerr for the plaintiffMinute: 1 August 2018JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[1] On 5 June 2018 the plaintiff commenced this proceeding by notice ofproceeding and statement of claim. The originating documentation was filed andserved together with a notice of application for summary judgment and an affidavitsworn by Florestina Fagasoaia-Mead who is a deputy Official Assignee at Wellingtonand has responsibility for this bankrupt estate.[2] There is proof of service for all of the above documentation on the file. It hasbeen served on the defendant, the Bank of New Zealand which is the mortgagee of theproperty and the Legal Services Commissioner who has caveated the title to theproperty. None of those parties have taken any step in the proceeding. In particularthe defendant has not filed a notice of opposition to the plaintiff's application forsummary judgment.[3] The matter was called in the Wellington commercial list yesterday.[4] The defendant having taken no steps in the matter, I indicated to Mr Kerr,counsel for the plaintiff, that I would enter summary judgment by default for theplaintiff and that I would provide reasons in a written decision. I now do so.[5] The Official Assignee seeks orders which will enable him to sell the propertyat 17 Bythell Street in Wainuiomata registered in the names of the bankrupt and thedefendant.[6] Upon Mr Esdot's adjudication in bankruptcy in this Court on 1 December 2015the Official Assignee of course assumed his interest in the property. The adjudicationalso operated to sever the joint tenancy.[7] The evidence is that the Official Assignee has attempted to resolve matters withMr Esdot and the defendant but thus far to no avail. I accept that the Official Assigneenow has no option but to take steps to exercise her rights.[8] There is ample precedent for the use of the summary judgment processcontained in pt 12 of the High Court Rules to obtain orders pursuant to the PropertyLaw Act (see McCleary v Prasad and Prasad [2012] NZHC 2151 perAssociate Judge Bell) and I note that the orders sought by the Official Assignee in thiscase are modelled on those approved in Official Assignee v Faresa (unreported),High Court, Auckland, Winkelman J, 13 February 2008.[9] In a memorandum filed prior to the hearing by Mr Kerr helpfully sets out thematters to which the Court must have regard before making the orders sought. Theseare set out in s 442 of the Property Law Act and include:(a) the extent of the applicant's share in the property;(b) the nature and location of the Property;(c) the nature of other co-owners in the extent of their shares;(d) the hardship that would be caused to the applicant by the refusal of theapplication, in comparison with the hardship that would be caused toanyone else by the granting of it;(e) the value of any contribution made by any co-owner to the cost ofimprovements to, or maintenance of, the Property;(f) and any other matters the Court considers relevant.[10] I am satisfied that Mr Kerr is correct in submitting that all of those factorsweigh heavily in favour of the orders sought, especially when the positions of the Bankof New Zealand and the Legal Services Commissioner are taken into account.[11] In view of the defendant's obvious lack of interest in opposing this applicationI am satisfied that it is appropriate to make the orders sought by the plaintiff (which Iobserve include an opportunity for Mr Esdot or the defendant to raise any concernsthey may have within a short period of time).[12] I make the following orders:(a) Orders under section 339(1)(a) and 343 of the Property Law Act 2007that:(i) the Property shall be sold under the control and conduct of theplaintiff;(ii) the plaintiff shall appoint a reputable real estate agent or agentsto act in respect of the sale of the Property;(iii) in consultation with such real estate agent or agents, the plaintiffshall determine the most appropriate means of marketing andselling the Property and shall set any asking, selling or reserveprices;(iv) the plaintiff shall be authorised to execute on the defendant'sbehalf any listing agreement, agreement for sale and purchase,memorandum of transfer or other document necessary to carryout or effect the sale of the Property;(v) pending sale the defendant shall ensure that the Property is keptin a clean, tidy and presentable condition for sale and shall makesuch reasonable access available for viewing as the plaintiff orher agents shall require;(vi) within 30 days of being served with notice that an unconditionalagreement for sale and purchase of the Property has beenentered into, the defendant shall give up vacant possession ofthe Property to the plaintiff;(vii) the proceeds of sale of the Property shall be disbursed in thefollowing priority and manner:1. repayment of the amount due and owing by Mr Esdot and/orthe defendant to Bank of New Zealand under its mortgageover the Property;2. payment of any outstanding rates or insurance premiums inrespect of the Property, real estate agent's commission orfees, valuation costs, costs of advertising or marketing, andlegal fees incurred in connection with the sale of theProperty;3. an equal division of the balance between the plaintiff andthe defendant, subject to the adjustment referred to atsub-para 4 below;4. the costs of this proceeding plus disbursements (as soughtat para (b) below) shall be deducted from the defendant'sshare of the net sale proceeds and shall be retained by theplaintiff;(viii) the orders set out at sub-paras (i) to (vii) shall be stayed for aperiod of 14 days from the date of service of the Court's orderson the defendant to enable her to make an offer to acquire theplaintiff's interest in the Property, should she wish to do so;(ix) the parties shall have leave to apply for further directions ifnecessary.(b) The plaintiff shall be entitled to costs against the defendant on acategory 2B basis, together with disbursements as fixed by theRegistrar.Associate Judge Johnston