BANNOCK, BANNOCK AND OXFORD STREET TRUSTEES (2010) LIMITED v MONACO MANAGEMENT LIMITED [2016] NZHC 2091

BANNOCK, BANNOCK AND OXFORD STREET TRUSTEES (2010) LIMITED v MONACO MANAGEMENT LIMITED [2016] NZHC 2091

The Court granted leave to amend in the limited respects necessary to determine the real controversy: to update the pleadings about expired/unreregistered leases, to clarify the s 37(4) claim as in personam, and to specify relief including discharge of mortgages and surrender of the lease, subject to an adjournment to allow defendants to recast evidence and with costs consequences reserved for later determination.

Citation
[2016] NZHC 2091
Parties
Plaintiffs: Michael William Bannock; Anne Margaret Bannock; Oxford Street Trustees (2010) Limited; other plaintiffs (Schedule 1 to Statement of Claim); First Defendant: Monaco Management Limited; Second Defendant: Monaco Village Limited (in liquidation and receivership); Third Defendant: Scott Patrick Sanders
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 September 2016
Procedural Posture
Civil (high Court) / Application to Amend Pleadings After Close of Pleadings; Pre Trial Hearing (29 August 2016)
Outcome
Amendments allowed in part; adjournment ordered to permit defendants to recast evidence; costs reserved
Legal Topics
Amendment of Pleadings, Indefeasibility, In Personam Claims Under S 37(4), Adjournment for Evidence Recasting, Costs
Property Law Civil Procedure Land Transfer Act Insolvency Fraud Amendment of Pleadings Indefeasibility In Personam Claims Under S 37(4) +2 more

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Parties

Michael William Bannock; Anne Margaret Bannock; Oxford Street Trustees (2010) Limited; other plaintiffs (Schedule 1 to Statement of Claim)

Plaintiffs

Monaco Management Limited

First Defendant

Monaco Village Limited (in liquidation and receivership)

Second Defendant

Scott Patrick Sanders

Third Defendant

Procedural Posture

Civil (high Court) / Application to Amend Pleadings After Close of Pleadings; Pre Trial Hearing (29 August 2016)

Legal Issues

  1. 1 Whether leave should be granted to amend pleadings after close of pleadings
  2. 2 Whether proposed amendments improperly recast allegations and cause prejudice to defendants
  3. 3 Whether the s 37(4) claim is an in personam claim and therefore outside indefeasibility protections

Ratio Decidendi

The Court granted leave to amend in the limited respects necessary to determine the real controversy: to update the pleadings about expired/unreregistered leases, to clarify the s 37(4) claim as in personam, and to specify relief including discharge of mortgages and surrender of the lease, subject to an adjournment to allow defendants to recast evidence and with costs consequences reserved for later determination.

Court Disposition

Amendments allowed in part; adjournment ordered to permit defendants to recast evidence; costs reserved

Orders

  • Leave granted to file the further amended reply updating paragraph 15 to reflect that certain leases have expired and not been reregistered
  • Leave granted to clarify the s 37(4) claim as an in personam claim and to narrow fraud allegations to registrations/renewals after proceedings commenced