GP 96 LIMITED V FM CUSTODIANS LIMITED HC CHCH CIV-2011-409-000627

GP 96 LIMITED V FM CUSTODIANS LIMITED HC CHCH CIV-2011-409-000627

The court granted limited, conditional access for inspection and assessment of repairs and chattels because the plaintiff raised a seriously arguable case on possession and the balance of convenience favoured supervised inspection; the existing injunction was not unwound, the defendant as alleged mortgagee in...

Source-derived case information.

Citation
openlaw-1cda6ba5_201d_4317_ac09_c2ee44b537a4.pdf
Parties
Plaintiff / Second Respondent: GP 96 LIMITED; Defendant / Applicant: FM CUSTODIANS LIMITED; First Respondent: LIVINGSPACE PROPERTIES LIMITED (IN RECEIVERSHIP)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 October 2011
Procedural Posture
Application Under S 244 Property Law Act 2007; Injunctive Relief Re Access and Possession / Interim Application to Vary/clarify Injunction and for Access (hearing on 12 October 2011)
Outcome
Application granted in part: limited conditional access for inspection and assessment permitted; substantive injunction otherwise left intact; costs awarded to defendant.
Legal Topics
Possession, Mortgagee in Possession, Injunction Variation, Access to Premises, Inspection and Repair Assessment, Costs
Property Law Mortgages Equity (injunctive Relief) Landlord and Tenant Civil Procedure Possession Mortgagee in Possession Injunction Variation +3 more

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Parties

GP 96 LIMITED

Plaintiff / Second Respondent

FM CUSTODIANS LIMITED

Defendant / Applicant

LIVINGSPACE PROPERTIES LIMITED (IN RECEIVERSHIP)

First Respondent

Procedural Posture

Application Under S 244 Property Law Act 2007; Injunctive Relief Re Access and Possession / Interim Application to Vary/clarify Injunction and for Access (hearing on 12 October 2011)

Legal Issues

  1. 1 Whether defendant is a mortgagee in possession and lawfully in possession
  2. 2 Whether plaintiff is entitled to access/inspection of premises pending resolution of possession dispute
  3. 3 Whether the building is untenable and effect of earthquake damage on rights

Ratio Decidendi

The court granted limited, conditional access for inspection and assessment of repairs and chattels because the plaintiff raised a seriously arguable case on possession and the balance of convenience favoured supervised inspection; the existing injunction was not unwound, the defendant as alleged mortgagee in possession may reasonably regulate access, and the plaintiff was denied a right to occupy or commence repairs or remove items without the mortgagee's approval.

Court Disposition

Application granted in part: limited conditional access for inspection and assessment permitted; substantive injunction otherwise left intact; costs awarded to defendant.

Orders

  • Plaintiff may make three requests on 48 hours notice to inspect the property for purposes specified in plaintiff's memorandum excluding commencing repair work.
  • A suitably qualified expert may inspect on 24 hours notice to assess need for repairs and state of premises including fixtures and fittings.