FM CUSTODIANS LIMITED v KEAST [2017] NZHC 2654

FM CUSTODIANS LIMITED v KEAST [2017] NZHC 2654

The Court granted summary judgment because the second Property Law Act notices were properly issued, there was no reasonably arguable defence to the plaintiffs' claim for principal and interest, and the plaintiffs were therefore entitled to possession under s 137 of the Property Law Act, with possession effective immediately for one property and by a set date for the other.

Citation
[2017] NZHC 2654
Parties
First Plaintiff: FM Custodians Limited (as custodial company of Trustees Executors Limited, the trustee of the First Mortgage Trust Group Investment Fund); Second Plaintiff: First Mortgage Managers Limited (as manager of the First Mortgage Trust Group Investment Fund); First Defendants: Nichola Jane Keast and Carmel Monica Riordan (as trustees of the Soho Trust); Second Defendant: Nichola Jane Keast
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 October 2017
Procedural Posture
Mortgage Enforcement (summary Judgment) / Summary Judgment Hearing and Judgment
Outcome
Summary judgment granted for plaintiffs against the first and second defendants
Legal Topics
Summary Judgment, Possession Orders, Property Law Act Notices, Default Interest, Guarantee
Property Law Civil Procedure Contract Mortgage Enforcement Summary Judgment Possession Orders Property Law Act Notices Default Interest +1 more

Case Brief

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Parties

FM Custodians Limited (as custodial company of Trustees Executors Limited, the trustee of the First Mortgage Trust Group Investment Fund)

First Plaintiff

First Mortgage Managers Limited (as manager of the First Mortgage Trust Group Investment Fund)

Second Plaintiff

Nichola Jane Keast and Carmel Monica Riordan (as trustees of the Soho Trust)

First Defendants

Nichola Jane Keast

Second Defendant

Procedural Posture

Mortgage Enforcement (summary Judgment) / Summary Judgment Hearing and Judgment

Legal Issues

  1. 1 Whether plaintiffs are entitled to summary judgment for principal and interest under the mortgage and guarantee
  2. 2 Whether Property Law Act notices relied on were valid and sufficient to permit summary judgment and possession orders
  3. 3 Whether the plaintiffs are entitled to possession under s 137 of the Property Law Act and the timing of vacant possession

Ratio Decidendi

The Court granted summary judgment because the second Property Law Act notices were properly issued, there was no reasonably arguable defence to the plaintiffs' claim for principal and interest, and the plaintiffs were therefore entitled to possession under s 137 of the Property Law Act, with possession effective immediately for one property and by a set date for the other.

Court Disposition

Summary judgment granted for plaintiffs against the first and second defendants

Orders

  • Judgment for the plaintiffs against the first and second defendants for payment of the principal owing under the mortgage together with interest, including default interest, calculated to 30 October 2017; plaintiffs' counsel to file a memorandum by end of business 30 October 2017 to confirm the sum.
  • Order for possession under s 137 of the Property Law Act: possession of 176 McLeod Road, Te Atatu South effective immediately.