AOKAUTERE LAND HOLDINGS LIMITED v TURVEY [2022] NZHC 375

AOKAUTERE LAND HOLDINGS LIMITED v TURVEY [2022] NZHC 375 [7 March 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-109[2022] NZHC 375BETWEEN AOKAUTERE LAND HOLDINGSLIMITEDPlaintiffAND DARYN TURVEYDefendantHearing (by VMR): 7 March 2022Appearances: J Mahuta-Coyle for the PlaintiffMr Turvey in personR Pinney for the Liquidator of Vey Group Ltd (in receivership &liq)Judgment: 7 March 2022JUDGMENT OF GWYN J[1] The defendant, Mr Daryn Turvey, and the plaintiff, Aokautere Land HoldingsLimited (Aokautere), are the first and second ranked mortgage holders, respectively,in relation to the property at 72 Webb Street, Wellington, contained within certificateof title WN441/14, Wellington Land Registration District (the property).[2] The property is owned by Vey Group Limited (in receivership and liquidation)(Vey).[3] The plaintiff has appointed its own receiver, who has accounted for allproceeds received in relation to the property since his appointment.[4] The defendant acquired his position as first ranked mortgage holder over theproperty by way of assignment of those rights to him from the Bank of New Zealand,which was the original lender to Vey.[5] In December 2020, the plaintiff requested that the defendant transfer the first-ranked mortgage held by the defendant to the plaintiff, upon payment of the balanceowed by the loan held by the defendant, pursuant to ss 102-103 of the Property LawAct 2007.[6] The plaintiff's documents state that, in response to the plaintiff's request, thedefendant asserted he was owed in excess of half a million dollars, rather than theapproximately $75,000 loan balance transferred to him upon the assignment of theloan only two months earlier.[7] The plaintiff says that on 25 February 2021, it repeated its request for a transferand accompanied that request with a payment of the full amount assessed asoutstanding under the assigned loan, being $60,445.10. The plaintiff also confirmedit would meet the defendant's reasonable legal costs in relation to the mortgagetransfer.[8] On 4 December 2022 Aokautere filed a statement of claim, on noticeapplication for interim injunction, supporting affidavit of Leslie William Fugle (thedirector and sole shareholder of Aokautere), undertaking as to damages andapplication for directions as to service.[9] In its substantive proceeding the plaintiff seeks declarations under s 3 of theDeclaratory Judgments Act 1908 in the following terms. That:(a) The obligations owed to the defendant by Vey and secured by thenamed mortgage are limited to the BNZ loan assigned to the defendanton 4 September 2020 and exclude any other prior advances, claims ordebts by the defendant that he alleges are owed to him.(b) The balance of the assigned BNZ loan is now nil, or such other amountas the Court may find.(c) The defendant has an obligation under ss 102-103 of the Property LawAct 2007 to transfer the named mortgage, having received:(i) a request to transfer that mortgage; and(ii) payment of the balance of the BNZ loan [or upon receiving suchother amount as the Court may find still constitutes the BNZloan]; and(iii) having received confirmation that the plaintiff will meet thedefendant's relevant legal costs at the time of the transfer.[10] The matter was called before me in the Judge's Chambers List this morning toconsider the plaintiff's application for interim injunction.[11] The papers were served on Mr Turvey, the defendant, over the weekend andI am grateful to him for being able to attend by telephone this morning, at short notice,notwithstanding a significant family commitment.[12] Aokautere seeks an order granting an interim injunction restraining thedefendant from:(a) appointing any receiver of and for the property; and(b) exercising any mortgagee power of sale or otherwise attempting to dealwith, alienate or transfer the property.[13] After discussion, Mr Turvey indicated that he would consent to the interimorders described at [12] above. Ms Pinny, who appeared for the liquidator of theVey Group, indicated that she abided the decision of the Court.Outcome[14] Having read the documents filed by the plaintiff and after hearing fromMr Mahuta-Coyle for the plaintiff and Mr Turvey, I am satisfied that it is appropriateto make the interim orders sought by the plaintiff, but with leave reserved for theparties to apply to the Court for any variation of the orders.Orders[15] I make orders in the following terms:(a) The defendant is restrained from:(i) appointing any receiver of and for the property; and(ii) exercising any mortgagee power of sale or otherwise attemptingto deal with, alienate or transfer the property.[16] Leave is reserved to both parties to apply to the Court for any variation of theorders.[17] I have also read the plaintiff's application for directions as to service and makeorders for service as set out at paragraph [1] of that application.[18] The matter is to be called again in the Judge's Chambers List on Tuesday26 April 2022.Gwyn JSolicitors:Dewhirst Law, WellingtonMr Daryn Turvey