Able Ventures Limited v Bolton - [2023] NZHC 1689

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-000039

[2023] NZHC 1689

UNDER Section 105 of the Land Transfer Act 2017

IN THE MATTER

of an application for orders discharging mortgages

BETWEEN

ABLE VENTURES LIMITED

First Plaintiff

NELSON MATTHEW BELL and JUDITH KAY BELL

Second Plaintiffs

AND

JOHN GRAHAM KENNETH BOLTON

First Defendant

ELWOOD ALAN ROBERT BOLTON, RAQUEL SAPPHO KYLAH GYPSY

TANIA MILLER, and the Estate of ADELIA PAN FINLAY

Second Defendants

Hearing: On the papers

Appearances:

G Grant and B Foster for the Plaintiffs J Delaney for the Second Defendants

Judgment:

3 July 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 03 July 2023 at 2.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ABLE VENTURES LIMITED v BOLTON [2023] NZHC 1689 [3 July 2023]

[1] The plaintiffs and second defendants seek consent orders/directions following the grant of leave in a judgment issued on 9 August 2022 (August 2022 judgment)1 and settlement of the dispute between them.2

[2] The August 2022 judgment followed a hearing in which the first defendant, John Graham Kenneth Bolton (Ken) did not participate.

[3] The proceeding is one of a series of proceedings against Ken by family members following Ken’s estrangement from the family. The history is long and convoluted. Some of that history—and the most relevant for the purposes of this judgment— is set out in the August 2022 judgment. Further history is set out in my judgment issued on 11 May 20233 and a judgment of Moore J issued on 8 October 2021.4

[4] Able Ventures Limited (Able) is the registered owner of a property at 23 Bain Street, Mount Manganui (the Property). The Property is held in certificates of title SA11D/699 and SA46A/890. Nelson Bell is the sole shareholder and director of Able. Judith Bell is his wife and a former director of Able.

[5] Ken is the registered mortgagee of three mortgages registered against the titles of the Property although he did not advance funds to Able or the second plaintiffs.5 The registered mortgages are:

(a) B.388436.5 (the 1996 mortgage);

(b) B.674837.1 (the 2001 mortgage); and

(c) M6484677.2 (the 2005 mortgage).

1      Able Ventures Ltd v Bolton [2022] NZHC 1957 (August 2022 Judgment).
2      Joint memorandum of counsel for plaintiffs and second defendants dated 2 June 2023. This memorandum was received by the Court on 7 June 2023.
3      Perpetual Trust Ltd v Bolton [2023] NZHC 1108.
4      Re Bolton [2021] NZHC 2692.
5      The funds came from the second defendants. There was not any evidence they either jointly or severally assigned their rights as lenders/mortgagees to Ken. The August 2022 judgment noted that Ken had not participated in the proceedings and therefore not provided any evidence or argument to contradict the second defendants’ case.

(together, the mortgages)

[6] The second defendants are all family members of Ken.6 Elwood Alan Robert Bolton (Alan) is Ken’s brother. Raquel Miller (known as Rachel) is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Able Ventures Limited v Bolton

Details

AGLC: Able Ventures Limited v Bolton [2023] NZHC 1689
Case: [2023] NZHC 1689
Decision Date: 3 July 2023

CaseChat Overview and Summary

The case of Able Ventures Limited v Bolton concerns the discharge of mortgages registered against a property located at 23 Bain Street, Mount Manganui. The plaintiffs, Able Ventures Limited and Nelson Matthew Bell and Judith Kay Bell, sought orders for the discharge of these mortgages, which were registered in the names of John Graham Kenneth Bolton, the first defendant, and various second defendants who are family members of the first defendant. The second defendants sought rectification of the mortgages, substitution of their names as mortgagees, or alternatively, a declaration that the first defendant held the mortgages as a constructive trustee for them.

The legal issues in the case primarily revolved around whether the second defendants were entitled to have the mortgages transferred to their names and whether the court could direct the Registrar or Deputy Registrar of the High Court to execute the transfer of the mortgages in the event of non-compliance by the first defendant.

The court found that the second defendants were indeed entitled to have the mortgages transferred to their names, as the first defendant held them as a constructive trustee for the second defendants. However, the court held that it could not direct the Registrar or Deputy Registrar to execute the transfer of the 2001 mortgage, as this obligation arose under the current judgment and not under a previous order or judgment. The court ordered that the first defendant be served with the judgment and directed him to deliver a registrable transfer of the 2001 mortgage to the second defendants within a specified time frame. If the first defendant failed to comply, the court directed the Registrar or Deputy Registrar to execute the transfer of the 2001 mortgage and also to execute transfers of the other two mortgages if requested by the plaintiffs or the second defendants.

The court's judgment provides clarity on the procedures to be followed in cases where a party fails to comply with court orders regarding the transfer of mortgages and underscores the importance of serving judgments on all relevant parties before directing the execution of such transfers.

Orders