Ikon Building Co-Operation Limited v Dumasia

[2021] NZHC 1719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-986

[2021] NZHC 1719

BETWEEN

IKON BUILDING CO-OPERATION LIMITED
Plaintiff

AND

POURUSHASP ROHINTON DUMASIA

First Defendant

DAVID HILLIAM

Second Defendant

Hearing:	On the papers
Appearances:	D A Cowan for Plaintiff
Judgment:	9 July 2021

JUDGMENT OF LANG J

[on without notice application for charging order]

This judgment was delivered by me on 9 July 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Doug Cowan, Titirangi

IKON BUILDING CO-OPERATION LTD v DUMASIA [2021] NZHC 1719 [9 July 2021]

[1]    This proceeding was referred to me today as Duty Judge to consider the without notice application by the plaintiff for leave to obtain a pre-judgment charging order against land owned by the second defendant. In the alternative, the plaintiff seeks an order sustaining a post-judgment charging order that it obtained on 28 February 2020. That charging order remains registered against the second defendant’s land.

[2]    The plaintiff registered the existing charging order against the second defendant’s land  after  I  entered  summary  judgment  against  the  defendants  on 21 February 2020.1 The Court of Appeal recently allowed an appeal by the defendants and set the judgment aside.2

[3]    Rule 17.51 of the High Court Rules 2016 prescribes how land that is subject to a final charging order may be discharged from that order. This may occur by registration with the District Land Registrar of a memorandum of satisfaction of the judgment3 or an order of the Court to the effect that the land is discharged from the charging order.4 Alternatively, the person who registered the charging order may consent to the land being discharged from the order.5

[4]    Rule 17.51 does not provide for land to be discharged from a charging order if the judgment on which it is based is set aside. This means the existing charging order will remain on the title to the second defendant’s land unless and until the Court makes an order discharging it. No such order has been sought to date.

[5]    At this stage the plaintiff therefore retains the protection of the existing charging order notwithstanding the fact that the judgment on which it is based has now been set aside. It will for the second defendant to take steps to obtain an order discharging the charging order if it wishes to do so. However, I do not consider the Court has any power to order that the existing order remains in force now that the judgment has been set aside.

1      Ikon Building Co-Operation Ltd v Dumasia [2020] NZHC 223.

2      Dumasia v Ikon Building Compliance Officer-Operation Ltd [2021] NZCA 292.

3      Rule 17.51(a).

4      Rule 17.51(b).

5      Rule 17.51(c).

[6]    I would not be prepared to make a pre-judgment charging order on the basis of the evidence provided in support of the application. This is as follows:

17.On 7 July 2021, Ikon sent a letter to the second defendant requesting him to confirm that the Property would not be sold while litigation is continuing. Annexed …

18.On 8 July 2021, the second defendant requested further time to respond. Annexed … This is surprising given the simple nature of the request. The refusal to comply with the response time gives me concern that the defendants are intending to sell the Property if the existing charging order is lifted.

19.I am concerned that if the charging order is not sustained, or a new charging order is not issued by the Court, that the second defendant will dispose of the Property (which is his only asset not in trust) before any further judgment is obtained by Ikon.

[7]    This sequence of events has only taken place over the last two days. I do not consider it sufficient to establish there is a real risk the defendants are currently attempting to dispose of the land. If the plaintiff becomes aware of further evidence that this is occurring, it may renew the application for a pre-judgment charging order.

[8]The application is dismissed.

Lang J