PEPPER NEW ZEALAND (CUSTODIANS) LIMITED V MS WOOLLETT AND MVC MAXIM HC PMN CIV-2012-454-566

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED V MS WOOLLETT AND MVC MAXIM HC PMN CIV-2012-454-566 [14 February 2013]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCIV-2012-454-566[2013] NZHC 202BETWEEN PEPPER NEW ZEALAND(CUSTODIANS) LIMITEDPlaintiffAND MATTHEW STEWART WOOLLETTAND MELANIE VENUS CINDERELLAMAXIMDefendantsHearing: 14 February 2013(Heard at Palmerston North)Counsel: M. Dobson - Counsel for PlaintiffR. Lewis - Counsel for First-Named Defendant M.S. WoollettNo appearance for the Second-Named Defendant M.V.C. MaximReasons: 14 February 2013REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALLUnder r 11.5 of the High Court Rules I direct the Registrar to deliver these Reasons for Decision at 3.00 pm on 14 February 2013.Solicitors: McVeagh Fleming, Solicitors, PO Box 4099, Auckland 1140RichardLewis Law, PO Box 941, Palmerston North 4440Introduction[1] Before the Court this morning 14 February 2013 was an application for summary judgment brought by the plaintiff.[2] Mr Dobson appeared as counsel for the plaintiff and Mr Lewis appeared as counsel for the first-named defendant, Matthew Stewart Woollett (Mr Woollett). There was no appearance for the second-named defendant, Melanie Venus Cinderella Maxim (Ms Maxim).[3] At the hearing of this matter today I made an order by way of summary judgment effectively unopposed as sought by the plaintiff in its statement of claim. This was to the effect that the defendants forthwith were to vacate and deliver up possession to the plaintiff of the property at 327 College Street, Palmerston North (the property) outlined at para [2] of the plaintiff's statement of claim.[4] In making that decision, I indicated that my detailed reasons would follow. This would include my decision on the question of costs on the application sought by the plaintiff which earlier today had been reserved.[5] I now set out those reasons and my decision on costs.Reasons for Decision[6] In the plaintiff's statement of claim it sought an order for vacant possessionof the property at 327 College Street, Palmerston North from the defendants on the basis that they were unlawful occupiers of the property.[7] Around 13 June 2006 the plaintiff through its predecessor TEA Custodians (Pacific) Limited agreed to advance to the defendants $224,147.00 pursuant to a loan agreement and a mortgage over the property.[8] The defendants subsequently defaulted under the mortgage and loan agreement and on 24 February 2012 a notice pursuant to s 119 Property Law Act 2007 was served requiring payment of $3,807.24 by way of unpaid principal and interest instalments then outstanding.[9] The defendants failed to remedy that default with the result that on 5 April 2012, in terms of the loan agreement and mortgage, the full monies advanced to the defendants became due and owing.[10] On or about 16 May 2013 the plaintiff made demand upon the defendants to vacate the property by 28 May 2012 which it was entitled to do in terms of s 137 Property Law Act 2006.[11] The defendants failed to vacate the property and effectively still remain unlawful occupiers of the property.[12] In this regard before me Mr Lewis counsel for Mr Woollett indicated that Mr Woollett now consents to the summary judgment possession order being granted to the plaintiff as sought here.[13] Mr Lewis explained that Mr Woollett now has possession of the property as recently it had been vacated by Ms Maxim who previously was in occupation. Mr Lewis advised the Court that when Ms Maxim vacated the property Mr Woollett discovered that it had been substantially damaged.[14] I repeat that Mr Woollett effectively now consents to the summary judgment application which is before me.[15] As to her position, it is noted that Ms Maxim was served personally with this proceeding on 29 August 2012. She has however provided no opposition or statement of defence to the application which is before me. Nor is there any appearance on her behalf before me today.[16] That said, I am satisfied that good reason exists for the grant of summary judgment sought here by the plaintiff to be made.[17] The order made by way of summary judgment for possession of the property in favour of the plaintiff noted at para [3] above was therefore made earlier today.Costs[18] As to costs on this application, before me counsel for the plaintiff confirmed that costs were sought but only on a category 2B basis.[19] As the plaintiff has succeeded in its present summary judgment application I see no reason why costs should not be awarded to it in the usual way.[20] Costs are therefore awarded to the successful plaintiff against the defendants on the present summary judgment application on a category 2B basis together with disbursements as fixed by the Registrar.'Associate Judge D.I. Gendall'