ANNE GEORGINA MAINWARING V MORTGAGE HOLDING TRUST COMPANY LTD CA647/2010

ANNE GEORGINA MAINWARING V MORTGAGE HOLDING TRUST COMPANY LTD CA647/2010 8 December 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA647/2010 [2010] NZCA 599BETWEEN ANNE GEORGINA MAINWARING Applicant AND MORTGAGE HOLDING TRUST COMPANY LIMITED Respondent Hearing: 30 November 2010 Court: Glazebrook, Arnold and Harrison JJ Counsel: Applicant in person, assisted by A W Rayner B J Upton and A L Bowater for Respondent Judgment: 8 December 2010 at 10 amJUDGMENT OF THE COURTA The applications for a stay of execution and for an extension of time to file an appeal are declined. B The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.REASONS OF THE COURT(Given by Arnold J) [1] The applicant, Mrs Mainwaring, entered into four loan agreements with the respondent, Mortgage Holding Trust Company Ltd (MHTC), in respect of personal borrowing. In addition, she entered into a guarantee in respect of two loanagreements entered into by a company. She gave a mortgage over her house as security. Mrs Mainwaring defaulted on her loan obligations in January 2009. The respondent issued notices under s 119 of the Property Law Act 2007, but they were not remedied. [2] On 28 May 2010 MHTC issued proceedings against Mrs Mainwaring seeking to recover what remained owing and to obtain vacant possession of the mortgaged property. MHTC sought summary judgment, which was granted by Associate Judge Faire. 1 At the hearing Mrs Mainwaring represented herself with a McKenzie friend, a Mr McKay. [3] The appeal period in relation to Associate Judge Faire's judgment expired on 14 September 2010. Mrs Mainwaring filed an application for an extension of time to appeal on 28 September 2010, although it is dated 22 September 2010. 2Subsequently, Mrs Mainwaring filed an application for a stay of execution, 3 there being an upcoming mortgagee sale of the property. [4] Before us, Mrs Mainwaring again represented herself but appeared with a McKenzie friend, this time Ms A W Rayner, who largely spoke on her behalf. Most of what was contained in the papers and in the written and oral submissions in support of the applications was incomprehensible, although Mrs Mainwarings' oral submissions were more to the point. [5] The grounds of appeal identified in the application for an extension of time are:1 The He Whakaputanga O Nu Tireni 1835, 2 The Status of General Land, 3 Vexatious Proceedings of the Court.The notice said that the Court should grant leave because:1 Mortgage Holding Trust Company Ltd v Mainwaring HC Hamilton CIV-2010-419-645, 17 August 2010.2 Court of Appeal (Civil) Rules 2005, r 29A.3 Rule 12(3).1 I am a free-man-on-the-land. 2 I have accrual rights in terms to section 6 of the Limitations Act 1950. 3 The Te Ture Whenua Maori/Maori Land Act 1993 sections 19, 1(a), (b), (c), (d), (e), (f), 129, 1(a), (b), (c), (d), (e), (f), 2, (a), (b), (c), (d), (e), (f), 3, 144, (1), (a), (b), 2, 3, 4, (a), (b), 5.The judgment sought from the Court was:1 Appeals to the Maori Appellate Court instructed by the Chief Justice under section 44 of the Te Ture Whenua Maori/Maori Land Act 1993. 2 Jurisdiction of High Court to rectify instruments section 163 of the Te Ture Whenua Maori/Maori Land Act 1993. 3 Damages for misrepresentation section 6 of the Contractual Remedies Act 1979.[6] Ms Rayner is described in the papers as the Chief Judge of the Maori Appellate Court. She filed an affidavit in support, which consists simply of extracts from various statutes. Her oral submissions on Mrs Mainwaring's behalf were to like effect. [7] The approach to applications for an extension of time within which to appeal is set out in My Noodle Ltd v Queenstown-Lakes District Council.4 There the Court said: 5A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay... The overall test, however, is whether granting an extension would "meet the overall interests of justice"...[8] This case concerns the recovery of debt and realisation of security after defaults on loan repayments. Mrs Mainwaring does not dispute that the loans were made, or that she defaulted in her obligations. She submitted that she did not understand the documentation. But she signed it and the funds were advanced. There is no indication that Mrs Mainwaring lacked the capacity to contract or was4 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.5 At [19].under undue influence or anything similar. Accordingly, there does not appear to be any legitimate reason why MHTC should be prevented from taking recovery action. We consider that the appeal has no prospect of success. [9] Nor has Mrs Mainwaring explained the delay in filing an appeal, although we accept that the period of delay is short. Clearly, however, given the delay to date, further delay will operate to the disadvantage of MHTC. [10] Overall, we see no basis for granting Mrs Mainwaring what is an indulgence by extending the time for filing an appeal and we decline to do so. It follows that the application for a stay must also be declined. Mrs Mainwaring is to pay costs to MHTC for a standard application on a band A basis and usual disbursements.Solicitors: Simpson Grierson, Auckland for Respondent