MOORE v HARRY [2017] NZHC 1587

MOORE v HARRY [2017] NZHC 1587

A purchaser who holds a registered transfer executed by a mortgagee pursuant to a power of sale acquires the fee simple free of prior rights and liabilities of the mortgagor under s105 LTA; therefore the registered proprietor is entitled to possession and the defendant's disputes with the mortgagee or allegations about the purchaser's source of funds do not constitute an arguable defence to summary judgment for possession.

Citation
[2017] NZHC 1587
Parties
Plaintiff: Herbert Moore; Defendant: D Harry
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 July 2017
Procedural Posture
Summary Judgment Proceeding for Recovery of Possession / Judgment on Summary Judgment Application
Outcome
Judgment for the plaintiff for possession of 5 Albert Street, Mackaytown; defendant has no arguable defence
Legal Topics
Possession, Mortgagee Sale, Summary Judgment, Registration of Title
Property Law Civil Procedure Land Transfer Law Possession Mortgagee Sale Summary Judgment Registration of Title

Case Brief

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Parties

Herbert Moore

Plaintiff

D Harry

Defendant

Procedural Posture

Summary Judgment Proceeding for Recovery of Possession / Judgment on Summary Judgment Application

Legal Issues

  1. 1 Whether the defendant has any real defence to a claim for possession by the registered proprietor
  2. 2 Whether disputes between mortgagor and mortgagee can defeat title of a purchaser at mortgagee sale
  3. 3 Whether alleged illicit source of purchaser's funds can defeat registered title or delay possession

Ratio Decidendi

A purchaser who holds a registered transfer executed by a mortgagee pursuant to a power of sale acquires the fee simple free of prior rights and liabilities of the mortgagor under s105 LTA; therefore the registered proprietor is entitled to possession and the defendant's disputes with the mortgagee or allegations about the purchaser's source of funds do not constitute an arguable defence to summary judgment for possession.

Court Disposition

Judgment for the plaintiff for possession of 5 Albert Street, Mackaytown; defendant has no arguable defence

Orders

  • Judgment for plaintiff for possession of the property
  • Defendant to vacate the property not later than 31 July 2017