MORTGAGE HOLDING TRUST COMPANY LTD V ROSCOE AND ANOR HC WHA CIV 2010-488-594

MORTGAGE HOLDING TRUST COMPANY LTD V ROSCOE AND ANOR HC WHA CIV 2010-488-594 15 September 2010IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY CIV 2010-488-594BETWEEN MORTGAGE HOLDING TRUST COMPANY LTD Plaintiff AND MATTHEW AARON ROSCOE First Defendant AND KIM ROSCOE Second Defendant Hearing: (on the papers) Counsel: M V Robinson and A Bowater for Plaintiff No appearance by, or on behalf of Defendants Judgment: 15 September 2010JUDGMENT OF HEATH JThis judgment was delivered by me on 15 September 2010 at 1.00pm pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy RegistrarSolicitors: Simpson Grierson, Private Bag 92518, Auckland[1] Mortgage Holding Trust Co Ltd (Mortgage Holding) seeks an interim injunction, on a without notice basis, to restrain Mr and Mrs Roscoe from removing a kitchen from their home. It is asserted that the kitchen forms part of the mortgage security held over the subject property by Mortgage Holding. [2] Mr and Mrs Roscoe live at 14 Bush Haven Drive, Whangarei. Mortgage Holding have a first ranking mortgage over that property. On 24 and 25 May 2010, a notice under s 119 of the Property Law Act 2007 was served on Mr and Mrs Roscoe respectively, in relation to outstanding instalments of $9,990.23. Notice was given that unless that sum, together with $573.75 for reasonable costs, was paid on or before 5 July 2010, all amounts secured by the mortgage would become payable and Mortgage Holding would be entitled to exercise powers to enter into possession of the mortgaged land or to sell it. [3] An affidavit from Mr Dabb in support of the application reveals that the notices have expired and the defaults have not been remedied. Arrangements have been made for the property to be sold at mortgagee sale. I accept counsel's advice that an auction is scheduled to take place on Friday 17 September 2010 at 1pm. [4] On 13 September 2010, Mortgage Holdings became aware that Mr and Mrs Roscoe were attempting to sell the kitchen of the property through the Trade Mewebsite. The advertisement suggested an urgent sale was required and that the kitchen had to be removed by 16 September 2010. Annexed to Mr Dabb's affidavit is a copy of the Trade Me notice and exchanges with potential buyers. In one of those exchanges, the proprietors indicate that other items might be sold; particularly a rangehood. [5] I am satisfied there is a serious question to be tried that the kitchen units are fixtures secured by the mortgage. I am also satisfied that removal of the kitchen could cause serious detriment to the price likely to be obtained by the mortgagee, at auction of the property. The balance of convenience plainly favours the issue of an interim injunction.[6] I make the following orders: a) The first and second defendants are restrained from selling, damaging or removing any part of the kitchen unit at 14 Bush Haven Drive, Whangarei (the Secured Property) or allowing any part of the kitchen unit to be sold, damaged or removed from the Secured Property. b) The first and second defendants are restrained from selling, damaging or removing any other fixtures or fittings of the Secured Property or allowing anyone else to sell, damage or remove any part of the Secured Property. c) These orders enure pending further order of the Court. d) Leave is reserved to the defendants to apply to set aside these orders on notice to Mortgage Holding. e) Costs reserved. [7] I record that an undertaking as to damages has been given by Mortgage Holding and that forms part of the orders made. [8] If any application were made to set aside these orders the Registrar shall refer it to me promptly. [9] A copy of this judgment shall be served on the defendants contemporaneously with the sealed order and all documents filed in support of the interim injunction application. _________________________ P R Heath J Delivered at 1.00pm on Wednesday 15 September 2010