New Zealand Case Law: Decisions & Judgments

Topic

Mortgagee in possession

Legal area

Court

18 Mar 2021

BODY CORPORATE 172108 v FLAT BUSH FINANCE LIMITED [2021] NZHC 555

Citation

[2021] NZHC 555
Court

High Court

Applying Unit Titles Act provisions and binding appellate authority (Court of Appeal and Supreme Court in BC 162791/Gilbert), a mortgagee in possession is liable for lawfully struck body corporate levies; FBF failed to establish a genuine dispute or a cross-claim sufficient to justify a stay under Nemesis principles, so the application for a stay and restraining order is dismissed.
7 Nov 2019

GP96 LIMITED v PVG SECURITIES TRUSTEE LIMITED [2019] NZSC 123

Citation

[2019] NZSC 123
Court

Supreme Court

Extension of time granted but leave to appeal denied because the property was sold without a stay rendering the issues moot, the proposed damages claim was speculative, and multiple unresolved factual and legal issues meant it was not in the interests of justice to grant leave.
23 Jul 2019

GP96 LTD v PVG SECURITIES TRUSTEE LTD [2019] NZCA 325

Citation

[2019] NZCA 325
Court

Court of Appeal

GP96 failed to establish a reasonably arguable continuing leasehold interest enforceable against PVG because the lease did not bind PVG (no consent by PVG or predecessors) and, in any event, the lease terminated when the landlord received no insurance monies available for reinstatement because FMC lawfully applied insurance proceeds to repay secured debt pursuant to its mortgage; accordingly PVG was entitled to removal of the caveat and the 2011 interim injunction could be rescinded; the Court may restrain further caveats in these circumstances.
9 Oct 2018

ROBERT HOANI CLIFFORD CRIBB AND KAREN LYNNE STEVENS v FM CUSTODIANS LIMITED [2018] NZSC 90

Citation

[2018] NZSC 90
Court

Supreme Court

Leave is refused because s 139(1)(c) Property Law Act 2007 supports the view that FM was in possession or entitled to possession such that it could sue for trespass and the applicants' contrary argument has insufficient prospects of success; alternatively FM was an involuntary bailee entitled to recover reasonable preservation costs.
31 Jul 2017

LEPIONKA & COMPANY INVESTMENTS LTD v HORSESHOE BEND HAWKES BAY LTD _x000b_[2017] NZHC 1482

Citation

[2017] NZHC 1482
Court

High Court

The court held that Lepionka was entitled to costs as the successful party; indemnity costs were not justified on the evidence, but a 30% uplift on 2B scale costs was appropriate given the opponent's non-compliance and wasted steps; costs against non-parties GLW Group Ltd and Elizabeth O'Neil were justified because they were responsible for steps taken in Horseshoe's name; duplication with mortgage recovery was rejected as a reason to refuse a costs order.
7 Jul 2017

FM CUSTODIANS LIMITED v CRIBB & ANOR [2017] NZHC 1562

Citation

[2017] NZHC 1562
Court

High Court

The Court held that under s 139(1)(c) the plaintiff was a mortgagee in possession from the date of its possession application; the plaintiff revoked permission for the chattels to remain by correspondence and service of the possession order and gave reasonable notice; the defendants' chattels therefore constituted trespass and, as involuntary bailee, the plaintiff was entitled to recover reasonable packing, removal, storage and insurance costs. Judgment awarded to plaintiff for $51,586.40 plus interest and costs on a 2B basis.
20 May 2016

MELTZER & ANOR as liquidators of LOWIE RECRUITMENT LIMITED (in Liquidation) v POUNAMU INTERNATIONAL LIMITED & Anor [2016] NZHC 1065

Citation

[2016] NZHC 1065
Court

High Court

The court refused the broad particular discovery sought because the plaintiffs failed to show a sufficient basis to suppose the disputed documents were in the defendants' control and relevant under r 8.7; no general order for extensive discovery was justified. The court directed a confined, proportionate tailored discovery process with tight timelines and reserved costs until conclusion of discovery.
12 Oct 2011

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

Citation

openlaw-1cda6ba5_201d_4317_ac09_c2ee44b537a4.pdf
Court

High Court

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.
6 Oct 2011

SHELLY ANNE FRANCIS MITCHELL V TRUSTEES EXECUTORS LIMITED COA CA217/2010

Citation

COA CA217/2010
Court

Court of Appeal

Amendment to grounds allowed except for a new quantum ground; application to adduce further evidence dismissed as either not fresh or not cogent; on merits there was no arguable defence: the alleged estoppel was inherently improbable and no detriment shown; the mortgagee's sale process and marketing were reasonable and did not breach s176; whether respondent was mortgagee in possession or receiver raised disputed facts but no arguable breach of duties or good faith or CCCFA oppression was shown; therefore summary judgment was properly entered and appeal dismissed.
15 Sept 2011

LDC FINANCE LIMITED (IN RECEIVERSHIP) V JENKINS HC NEL CIV 2009-442-000281

Citation

openlaw-f8ac4f67_6259_4f50_a40f_e778c24f57a6.pdf
Court

High Court

The Court applied a literal and purposive construction of s139(1)(c) to hold that a successful mortgagee's possession is backdated to the date of its application; however s168(1)(b) can terminate such backdated possession where a prior mortgagee enters into possession. Because the respondent (Colin Gordon) arguably held a prior mortgage and purportedly entered into possession on 27 July 2009, any backdated order in favour of the plaintiff would be at least arguably nugatory; further, the respondent's evidence did not establish consent binding the plaintiff to the 2003 leases nor any satisfact…