HERBERT & ORS as trustees of the HERBERT FAMILY TRUST v SCOTT [2014] NZHC 1137

HERBERT & ORS as trustees of the HERBERT FAMILY TRUST v SCOTT [2014] NZHC 1137

As registered proprietors who purchased from the mortgagee, the plaintiffs hold indefeasible title protected by the Land Transfer Act and are entitled to possession; the defendant has not established a residential tenancy or any arguable proprietary defence (eg lien) or valid challenge to the mortgagee sale that...

Source-derived case information.

Citation
[2014] NZHC 1137
Parties
Plaintiff (trustee): Nigel Anthony John Herbert; Plaintiff (trustee): Deborah Jane Reid; Plaintiff (trustee): Wyndham Trustees (as trustees of the Herbert Family Trust); Defendant: Lewtyn Michael Scott
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 May 2014
Procedural Posture
Summary Judgment Application for Possession of Land / Hearing and Oral Judgment (summary Judgment)
Outcome
Summary judgment for plaintiffs; defendant has no defence to claim for possession
Legal Topics
Summary Judgment, Indefeasibility of Title, Mortgagee Sale, Possession/ejectment, Residential Tenancies Act S58, Alleged Equitable Lien, Trespass Act Notice, Costs
Property Law Insolvency Law Land Transfer Law Residential Tenancies Law Civil Procedure Summary Judgment Indefeasibility of Title Mortgagee Sale +5 more

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Parties

Nigel Anthony John Herbert

Plaintiff (trustee)

Deborah Jane Reid

Plaintiff (trustee)

Wyndham Trustees (as trustees of the Herbert Family Trust)

Plaintiff (trustee)

Lewtyn Michael Scott

Defendant

Procedural Posture

Summary Judgment Application for Possession of Land / Hearing and Oral Judgment (summary Judgment)

Legal Issues

  1. 1 Whether registered proprietors (purchasers from mortgagee) are entitled to possession against former owner occupier
  2. 2 Whether defendant enjoys a residential tenancy under the Residential Tenancies Act s58 that prevents possession proceedings in High Court
  3. 3 Whether the Official Assignee's insolvency orders or the bankruptcy of the defendant invalidated the bank's mortgage or sale

Ratio Decidendi

As registered proprietors who purchased from the mortgagee, the plaintiffs hold indefeasible title protected by the Land Transfer Act and are entitled to possession; the defendant has not established a residential tenancy or any arguable proprietary defence (eg lien) or valid challenge to the mortgagee sale that would defeat the purchasers' title, so summary judgment for possession is appropriate.

Court Disposition

Summary judgment for plaintiffs; defendant has no defence to claim for possession

Orders

  • Defendant Lewtyn Michael Scott must vacate 5A Pillans Road, Tauranga and remove all his belongings within two weeks of 27 May 2014 (date of judgment)
  • Costs awarded to plaintiffs on a category 2 basis; plaintiffs' counsel to file calculation and defendant allowed one week to respond thereafter; court to determine costs on papers if no response