New Zealand Case Law: Decisions & Judgments

Topic

Mortgagee possession

Legal area

Court

5 Aug 2021

KEAST v CROWN WORLDWIDE (NZ) LIMITED [2021] NZHC 2143

Citation

[2021] NZHC 2143
Court

High Court

The Court held that the mortgagees, having a possession order, were entitled to remove and store the plaintiffs' chattels as involuntary bailees (following Cribb), and Crown as sub‑bailee was entitled to summary judgment because it merely stored goods under mortgagee instructions and did not participate in destruction; however the mortgagees failed to establish on summary judgment that they were entitled to destroy the goods — destruction raises distinct legal issues (limited common law authority, necessity narrowly construed and owner intent questions) requiring a full trial to resolve.
6 Jun 2018

CRIBB AND STEVENS v FM CUSTODIANS LIMITED [2018] NZCA 183

Citation

(2018) 19 NZCPR 153
Court

Court of Appeal

The Court held that the mortgagee became mortgagee in possession by operation of s 139(1)(c) backdated to its application, the removal of chattels before physical entry did not preclude a trespass claim by relation, and a mortgagee who is an involuntary bailee may lawfully and reasonably remove and store trespassing chattels and recover reasonable costs where fair notice was given and occupants failed to act.
16 Dec 2016

GLW GROUP LTD v LEPIONKA AND COMPANY INVESTMENTS LTD [2016] NZHC 3109

Citation

[2016] NZHC 3109
Court

High Court

The application for a stay of the Tenancy Tribunal proceeding and related relief was dismissed because the Tribunal has exclusive statutory jurisdiction over tenancy claims, Mr Paterson was not a party to the High Court interlocutory application so issue estoppel could not be invoked against him, and it was not an appropriate exercise of the Court's discretion to grant injunctive relief given the procedural and evidentiary context and alternative remedies (damages) available.
29 Jul 2016

NAGS HEAD HORSE HOTEL LTD v MAWHINNEY & ORS [2016] NZHC 1740

Citation

[2016] NZHC 1740
Court

High Court

On the evidence the applicant holds a first registered mortgage that secures a current debt, valid s119 notice was served on the current mortgagor, and the mortgagor is in default; therefore the Court grants the mortgagee an order deeming it mortgagee in possession from the date of application and authorises sale with specified safeguards including marketing under proposed plan, court approval of tender, and conditional permission for mortgagee purchase only after two forced sale valuations and court approval.
30 May 2016

THE BANK OF NEW ZEALAND v MICHAEL ROBERT GARNHAM [2016] NZHC 1144

Citation

[2016] NZHC 1144
Court

High Court

The Court granted partial summary judgment: the Bank proved there was no arguable defence to its claim on the First Housing Loan such that judgment was entered for the Bank against the trustee (limited to trust assets) and guarantors for principal and accrued interest; the claims affected by alleged July 2013 refinancing wrongs (Property Plus loan and Second Ballantyne loan) raised reasonably arguable defences (misrepresentation, mistake, non est factum, FTA) and therefore are not appropriate for summary judgment and must proceed to trial; the Bank is entitled to an order for vacant possessio…
31 Mar 2014

HOOLE and PITFIELD as receivers of CLAN NA GAEL HOLDINGS NZ LIMITED (In Receivership) v PICKENS [2014] NZHC 620

Citation

[2014] NZHC 620
Court

High Court

Rotoiti held a registered first mortgage and had lawfully obtained the right to possession by valid default notices; Lambert never obtained title or a valid estate to grant exclusive possession so the lease to Pickens (and sub-lease to van Veen) could not defeat the mortgagor or mortgagee; furthermore the Official Assignee's disclaimers terminated any residual contractual or leasehold rights derived from Lambert, and the mortgagee's registered priority therefore prevailed; accordingly plaintiffs entitled to summary judgment and possession.
18 Mar 2010

TEA CUSTODIANS (BLUESTONE) LIMITED V A PERSON OR PERSONS UNKNOWN OCCUPYING A PROPERTY AT 15 OAKLEIGH AVENUE, TAKANINI HC AK CIV 2010-404-000086

Citation

openlaw-36092c41_fc75_4cae_b227_853d4e515654.pdf
Court

High Court

The plaintiff established the factual and procedural foundation required by High Court Rules Part 13 for summary possession and service was effective; the defendants' protest to jurisdiction was unfounded and set aside because the Court will not cede jurisdiction over land with a registered title; however, the defendants' assertion of a prior arbitration raised an evidentiary issue warranting a limited adjournment to allow proof, after which final determination will be made.
13 Aug 2009

TEA CUSTODIANS (PACIFIC) LIMITED V TAKARANGI AND ANOR HC WN CIV 2009-485-001081

Citation

openlaw-5ed2dbe0_4814_4655_b2f1_c59a9ce562e0.pdf
Court

High Court

The plaintiff was entitled to summary judgment for possession because the defendant defaulted and failed to remedy the default after a valid s92 notice, the Official Assignee disclaimed interest, insolvency law preserves the mortgagee's right to realise the security, and the defendant advanced no real defence to defeat summary judgment; accordingly an order for vacant possession was justified.
13 Nov 2008

CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LTD AND ORS HC CHCH CIV 2008-409-000825

Citation

openlaw-eff7c0ce_8af9_40e1_8e2f_ef01613b90c5.pdf
Court

High Court

Court held the Occupation Loan Agreements conferred lease/occupation interests; Cashmere, by taking the mortgage with knowledge of ongoing occupation and income, had consented (consent construed liberally and not vitiated by mortgagor's misrepresentation); Cashmere is exercising effective management/control and thus is an operator under the Retirement Villages Act so s22 applies; accordingly Cashmere cannot obtain vacant possession or dispose other than as required by law and its claims fail.
9 Sept 2008

CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LTD AND ORS HC CHCH CIV 2008-409-000825

Citation

openlaw-cd65551e_dc02_4fe9_9b2a_992404f20de4.pdf
Court

High Court

Summary judgment was dismissed because the plaintiff did not establish there were no bona fide or reasonable grounds for defending the claim; factual and legal issues (including whether the agreements create life tenancies, whether the mortgagee is an operator under the Retirement Villages Act, and whether the Property Law Act requires mortgagee consent) require further affidavits and argument; matter adjourned for determination of defendants' strike-out application.