WHITE AND ORS V RIKA AND ORS HC WHA CIV-2006-488-129 [2009] NZHC 370 (30 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                                        CIV-2006-488-129


                IN THE MATTER OF             the Property Law Act 1952

                BETWEEN                      GRAHAM WHITE,
LYNETTE MAY
                                             EDWARDS, RAYMOND BRETT
                                             WATERS
AND BERNADINE WILLIS
                                             Plaintiffs

                AND                          HENRY
RIKA, EUGENE HENRY JOSE,
                                             DAVID CLIFTON RIKA AND
                                   
         MASON RIKA
                                             First Defendants

                                             MIRIAM
CAROLINE TUROA, DEAN
                                             MARTIN HENRY RIKA, FREDERICK
                                 
           HAROLD RIKA, JANET MAY
                                             MATENGA, KIA TUROA, MARK
                        
                    EDWARDS, WINIFRED RIKA, KEVIN
                                             FRED RIKA AND DAVID MATENGA
     
                                       Second Defendants


Hearing:        30 March 2009
                (On the Papers)
       
        (Heard at Auckland)

Appearances: W W Peters for the Plaintiffs
             G Davis for the Defendants

Judgment:      
30 March 2009


                              JUDGMENT OF DUFFY J



                         This judgment was delivered by Justice
Duffy
                          on 30 March 2009 at 2.30 pm, pursuant to
                                 r 11.5 of the High Court
Rules

                         Registrar/Deputy Registrar
                         Date:

Solicitors:   Wayne W Peters and Associates
P O Box 5053 Whangarei 0101
              Tumanako Law P O Box 697 Kerikeri 0470 for the Defendants

WHITE AND ORS V RIKA AND ORS
HC WHA CIV-2006-488-129 30 March 2009

[1]     This matter was heard on 5 February 2008. The plaintiffs are some of the co-
owners
of all that land comprised and described in Certificate of Title NA10D/555
(North Auckland Registry), being 8.0937 hectares more
or less situated in
Part Waihapa 2B2B Block ("the land"). They were seeking orders directing the sale
of the land and how the sale
will be achieved, as well as costs.


[2]     The proceeding was commenced under the Property Law Act 1952.
However, for the reasons
set out in my interim judgment of 11 March 2008, I
propose to deal with the application as if it were brought under the Property
Law Act
2007.


[3]     The first defendants were represented at the hearing before me and advised
they supported the application.
     No one appeared to oppose the application.
However, the plaintiffs had not provided proper proof of service of all persons
having
an interest in the application. Such evidence was not available to me until
11 March 2009. I am now in a position where I can be
satisfied that all persons with
a proper interest in the application have been served. The directions I gave in
relation to service
and the disposition of the requirement for service in respect of the
late Dean Martin Henry Rika and his heirs and successors are
set out in my interim
judgment of 11 March 2008.


[4]     No one with an interest in this proceeding has opposed the Court making
the
orders the plaintiffs seek. The evidence the plaintiffs have adduced is sufficient to
satisfy me that this is a case where it
is appropriate to make the orders sought. There
are clearly no interested persons who would seek to oppose the sale of the subject
land. The opposition some persons had earlier expressed is no longer maintained. In
circumstances where no one wants to retain land
in which they have an interest, there
is no reason for its retention. I am prepared, therefore, to make the necessary order
pursuant
to s 339 of the Property Law Act 2007 for the sale of the land.


[5]     The suggested mode of sale was under the direction of the Registrar of the
High Court. The plaintiffs sought an
order pursuant to s 343(g) of the Property
Law Act empowering the Registrar to execute whatever documentation was required
to effect
the sale of the land. Given the number of persons having an interest in the

land and the difficulty there has been in finding some
of them, so as to achieve
service of the proceedings on them, I am satisfied that the sale being executed by a
neutral and independent
party, like the Registrar, is a sensible approach.
Accordingly, I direct that the Registrar is empowered pursuant to s 343(g) of
the
Property Law Act to do whatever is necessary to effect the sale of the land.


[6]      Particularly, because of the earlier
opposition to the application, and, in any
event, due to the cost to which the plaintiffs have been put, it seems to me to be
appropriate
that costs be awarded to the plaintiffs.


[7]      Leave is reserved to the parties to file memoranda on the appropriate scale of
costs to be awarded to the plaintiffs.


Result


[8]      An order is made pursuant to s 339 of the Property Law Act directing the
sale
and partition of the land in accordance with the various interests each relevant person
has in the land;


[9]      An order
is made pursuant to s 343(g) of the Property Law Act empowering
the Registrar of the Court to take whatever steps are necessary to
effect the sale of
the land and to effect the distribution of the proceeds of sale in accordance with the
various interests held
in the land;


[10]     The plaintiffs are awarded costs at a scale to be determined by the Court,
should the parties and persons
having an interest in the sale of the land be unable to
agree on an appropriate amount.




                                    
                              Duffy J