ELLIS V FARMER HC AK CIV-2007-404-003872 [2009] NZHC 1004 (12 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV-2007-404-003872




               BETWEEN                       ROBERT MICHAEL ELLIS
                                             Plaintiff

  
            AND                           ADAM MICHAEL FARMER
                                             Defendant

          
                                                  CIV-2006-404-006931



               AND BETWEEN                   ADAM MICHAEL
FARMER
                                             Plaintiff

               AND                           ROBERT MICHAEL ELLIS
                                             Defendant


Hearing:       12 August 2009

Appearances: E Gellert for Westpac New Zealand
Limited
             K Davenport for Mr Farmer

Judgment:      12 August 2009


                       ORAL JUDGMENT OF VENNING J




Solicitors:    Sellars & Co, Helensville
               Kidd Tattersfield Maclean, North Shore City
               Simpson Grierson,
Auckland
Copy to:       K Davenport, Auckland




ELLIS V FARMER HC AK CIV-2007-404-003872 12 August 2009

[1]    These proceedings
have a lengthy history.       It is unnecessary for me to
traverse the history to them this morning.


[2]    After a considerable
period of time a position has now been reached where
Mr Farmer seeks a number of orders by way of formal proof to finalise the position
between him and Mr Ellis.


[3]    Mr Ellis was formally represented by Mr Maclean. Mr Maclean has been
granted leave to withdraw
but is still in communication with Mr Ellis and I
understand that Mr Ellis is aware of this morning's hearing and the general nature
of
the orders sought and either supports or, at the least, does not oppose them. In any
event the proceeding was before the Court
for a formal proof hearing and I am
satisfied that Mr Ellis has notice of that hearing and after discussion with counsel I
am also
satisfied that judgment for Mr Farmer is appropriate on a formal proof basis.


[4]    After hearing from Ms Davenport, counsel for
Mr Farmer and Ms Gellert for
Westpac NZ Limited and having considered the evidence adduced I make the
following orders.


      
    (1) A declaration that Mr Farmer is the beneficial owner of a one half
                share and interest in the property known
as 97 Pemberton Avenue,
                Glenfield and more particularly described in Certificate of Title
                NZ109A/732
(the property) and that Mr Ellis holds that one half
                share in trust for Mr Farmer.


           (2) That Land Information
New Zealand (LINZ) be required to transfer
                to Mr Farmer a one half share and interest in the property subject
  
             only to the mortgage to Westpac NZ Limited (mortgage no.
                D521727.1) (the mortgage) to the end and intent
that the registered
                proprietors of the property contained in Certificate of Title would
                then be Mr
Farmer and Mr Ellis as tenants in common in equal
                shares.

(3) That all caveats and any other claims or charges
registered against
    Certificate of Title NZ109A/732 (other than the mortgage) be noted
    by LINZ as being registered against
and affecting Mr Ellis' one half
    share and interest in the property only.


(4) An order that the property forthwith be listed
for sale with two real
    estate agents at the average of the prices suggested by each of them
    with vacant possession to be
given on sale. If the property does not
    sell for this price by 30 October 2009 then the price shall be reduced
    to a reasonable
average price suggested by the same two agents. For
    the avoidance of doubt either Mr Ellis or Mr Farmer may make an
    offer
for the property at the price fixed by this clause from time to
    time. The solicitors for Mr Farmer shall be the solicitors on
the sale.


(5) In the event of sale of the property, after payment of the mortgage
    and real estate costs and reasonable costs of sale, the proceeds of
    sale are to be divided
as follows:


    (a)   Payment of all arrears of rates, water rates or insurance;


    (b)   The balance is to be divided equally
between the parties
          provided that the balance payable to Mr Ellis is to stand
          charged with payment of such sums
that may be secured by
          the caveats and charges registered against the property (which
          by operation of clause
3) shall be registered against and affect
          Mr Ellis' one half share only, together with the amount of
          $70,000
and any sums by way of costs awards owing by Mr
          Ellis to Mr Farmer.


(6) Westpac Bank be required to provide any information
to Mr Farmer
    which he reasonably requires from time to time regarding the
    indebtedness secured by the mortgage but subject
to any overriding
    privacy restrictions owed by Westpac to Mr Ellis and that Mr

     Farmer is to be served by Westpac with
any notices issued under the
     Property Law Act 2007.


(7) That the rental income currently received for the property is,
  
  (pending sale), to be paid into an account to be established called
     "Pemberton Road account" in both the name of Mr Farmer
and Mr
     Ellis and to be used to meet all mortgage payments and outgoings
     and any surplus or deficit is to be shared equally.


(8) That the tenant and the letting agency be served with a copy of this
     order and directed to comply with the terms of this
order and to deal
     with Mr Farmer as an owner of the property.


(9) That these orders are to be served on Mr Ellis through his
former
     solicitor Kidd Tattersfield Maclean and by email and on the Westpac
     Bank and on the chargeholders and caveators
at the address for
     service shown on the caveats or at the offices of the solicitors
     registering the charges against the
property.


(10) Mr Farmer is entitled to an order for costs on a 2B basis for today's
     appearance and preparation.


(11) In
the event that any of the caveators or chargeholders wish to be
     heard as to the effect of orders (2) and (3) above they are
to file a
     notice to that effect with the Court in this proceeding and serve a
     copy of the same on Mr Farmer's solicitors
within 28 days of service
     of these orders.


(12) Orders (2) and (3) are to lie in Court pending the expiry of that 28
    
day period following service.


(13) On an affidavit being filed confirming service and the expiry of the
     28 day period following
that the Registrar may issue orders (2) and

                (3) if no notice has been filed with the Court in accordance with

               order no. (11).


[5]    Finally I note that nothing in these orders is intended to affect the rights that
Westpac
NZ Limited holds as mortgagee.


[6]    I also record that Westpac is entitled to costs on a reasonable solicitor/client
basis for
attendance today and review of the proposed draft orders.




                                              __________________________
                                              Venning J