PEPPER NEW ZEALAND (CUSTODIAN) LTD V EBADA PROPERTY INVESTMENTS LTD HC AK CIV-2011-404-2737

PEPPER NEW ZEALAND (CUSTODIAN) LTD V EBADA PROPERTY INVESTMENTS LTD HC AK CIV-2011-404-2737

The applications for stay were dismissed because there was nothing in fact or law to stay (the relief sought had previously been refused or was not the subject of an appealable order), s121 does not prevent a mortgagee exercising remedies (damages are the remedy), the caveats had been removed and could not properly...

Source-derived case information.

Citation
openlaw-b127020b_de0a_4aa7_b916_592c76112653.pdf
Parties
Plaintiff/applicant/third Respondent: Pepper New Zealand (Custodians) Limited; First Defendant/first Respondent: Ebada Property Investments Limited; Second Defendant/second Respondent: Brian Patrick Garrity; Applicant/respondent: Taylor Jade Schmidt; Applicant: Anthony Mikhal Schmidt
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 June 2012
Procedural Posture
Civil Applications to Stay Judgments Pending Appeal / Interlocutory Judgment on Applications for Stay and Interim Relief
Outcome
All applications for stay dismissed
Legal Topics
Stay of Judgment, Caveat, Summary Judgment, Possession, Service of S119 Notice (property Law Act), Rescission
Property Law Mortgages Civil Procedure Equity Stay of Judgment Caveat Summary Judgment Possession +2 more

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Parties

Pepper New Zealand (Custodians) Limited

Plaintiff/applicant/third Respondent

Ebada Property Investments Limited

First Defendant/first Respondent

Brian Patrick Garrity

Second Defendant/second Respondent

Taylor Jade Schmidt

Applicant/respondent

Anthony Mikhal Schmidt

Applicant

Procedural Posture

Civil Applications to Stay Judgments Pending Appeal / Interlocutory Judgment on Applications for Stay and Interim Relief

Legal Issues

  1. 1 Whether the High Court should grant stays of prior judgments pending appeal
  2. 2 Whether caveats could be reinstated or maintained by interim relief
  3. 3 Whether failure to serve a s119 notice pursuant to s121 Property Law Act 2007 invalidates mortgagee's exercise of remedies

Ratio Decidendi

The applications for stay were dismissed because there was nothing in fact or law to stay (the relief sought had previously been refused or was not the subject of an appealable order), s121 does not prevent a mortgagee exercising remedies (damages are the remedy), the caveats had been removed and could not properly be reinstated by interlocutory order, the Schmidts had minimal prospects of success on appeal, and further delay would prejudice the mortgagee and reduce any surplus available to the Schmidts.

Court Disposition

All applications for stay dismissed

Orders

  • Each application for stay dismissed
  • Costs to Pepper New Zealand (Custodians) Limited and Ebada Property Investments Limited on a 2B basis