Adcock v Brancott
[2023] NZHC 3136
•7 November 2023
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2023-406-13
[2023] NZHC 3136
BETWEEN IAN GREGORY ADCOCK
Plaintiff
AND
RACHEL RUBY GRACE BRANCOTT
Defendant
Hearing: 1 November 2023 Appearances:
D J Clark for Plaintiff
No appearance by or for the Defendant
Judgment:
7 November 2023
JUDGMENT OF ASSOCIATE JUDGE SKELTON
[Reasons]
[1] This is the reasons judgment for this matter following the results judgment issued on 1 November 2023.
[2] The plaintiff applies for summary judgment for an order that the defendant vacate the property at , and deliver up vacant possession to the plaintiff.
[3]The application is opposed by the defendant.
Factual background
[4]The plaintiff entered into an agreement for purchase of , from The Cooperative Bank Ltd (mortgagee) on 20 April 2023.
ADCOCK v BRANCOTT [2023] NZHC 3136 [7 November 2023]
[5] The defendant was the mortgagor and the owner of the property at the time of the mortgagee sale.
[6] The plaintiff settled the purchase of the property on 10 May 2023 and was transferred title to the property by the mortgagee. Title to the property was registered in the name of the plaintiff on 10 May 2023.
[7] On 25 May 2023, the plaintiff, by his solicitor, gave notice in writing to the defendant requesting her to vacate the property within 10 working days of the date of the plaintiff’s solicitor’s letter. The defendant has not vacated the property.
[8] The plaintiff contends that the defendant has no right to possession and no legal or equitable interest in the property.
[9] The defendant has filed a notice of opposition to the application for summary judgment and an affidavit dated 29 August 2023. The defendant has also submitted other documents in relation to the matter, including a “Notice to Attach a Third Party sought by Respondent” dated 29 August 2023, a “Notice of Request for Disclosure sought by Respondent” (undated) and a “Notice of Counter Claim sought by Respondent” (undated).
Legal principles – summary judgment
[10] The plaintiffs’ application for summary judgment is made under r 12.2(1) of the High Court Rules 2016 which provides as follows:
12.2 Judgment when there is no defence or when no cause of action can succeed
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[11] The principles that govern summary judgment are now very well settled. In Krukziener v Hanover Finance Ltd, the Court of Appeal summarised the principles as follows:1
The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at 341. In the end the court’s assessment of the evidence is a matter of judgment. The court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corporation Ltd v Patel (1987) 1 PRNZ 84 (CA).
Under r 141A of the High Court Rules the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.
[12] Other ways of expressing the notion of “no defence” are: no bona fide defence, no reasonable ground of defence, and no fairly arguable defence.2
[13] The Court will deal with questions of law on a summary judgment application,3 and this includes issues of contractual interpretation.4 This is so even where the question of law is difficult and requires argument, including reference to authority.5
[14] The High Court Rules 2016 specifically provide a procedure for recovery of land in pt 13. However, even though a proceeding falls within pt 13, this does not prevent the plaintiff applying for summary judgment.6
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]–[27].
2 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.
3 At 4.
4 Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188, [2015] 1 NZLR 383 at [37].
5 At [37] citing International Ore & Fertilizer Corp v East Coast Fertiliser Co Ltd [1987] 1 NZLR 9 (CA) at 16.
6 McLaughlin v McGarry (2000) 15 PRNZ 178; and Dodd v Livingston HC Wellington CIV-2011-485-2526, 26 March 2012 at [44]; and Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR13.2.04].
Plaintiff’s position
[15] The plaintiff submits that pursuant to s 51 of the Land Transfer Act 2017, registration of title in the hands of the plaintiff gives him title free from all other estates and interests in that land unless they are registered or noted on the register. The plaintiff submits that there are no estates or interests adverse to the plaintiff on the record of title, and certainly none in favour of the defendant.
[16] The plaintiff acknowledges that there are exceptions and limitations to s 51 which are set out in ss 52–56 and s 204 of the Land Transfer Act.
[17] Section 204 concerns estates in land for which there is a limited record of title. The plaintiff submits that does not apply here as the property does not have a limited record of title.
[18] The plaintiff submits that the following exceptions and limitations are potentially relevant:
(a)fraud on the part of the registered proprietor – s 52 of the Land Transfer Act;
(b)an application to alter the register on the basis of a void or voidable instrument – s 54 of the Land Transfer Act;
(c)cases of manifest injustice where there has been a failure to comply with a statutory power or authority and where there is an application to cancel the registration of the person who is the proprietor on the title and where there is a court order to that effect – ss 55–57 of the Land Transfer Act.
[19] The plaintiff submits there has been no application to alter the register, so s 54 of the Land Transfer Act does not apply.
[20] The plaintiff submits there has been no failure to comply with a statutory power or authority, so ss 55–57 of the Land Transfer Act do not apply.
[21] The plaintiff notes that there may be an equitable claim in limited circumstances, but there has been no equitable claim advanced by the defendant.
Defendant’s position
[22] The precise bases on which the defendant opposes the application for summary judgment are not clear from the defendant’s notice of opposition and the other papers filed by her.
[23]The following issues are identifiable from the defendant’s papers.
Allegations of fraud
[24] There are some general allegations of fraud made in the papers against the plaintiff and the mortgagee. However, there are a number of difficulties with these allegations.
[25] Allegations of fraud must be pleaded with precision and supported by credible material that establishes a prima facie case of fraud. The requirements are well settled and apply equally to self-represented litigants.7
[26] In the context of an application for summary judgment, a defendant who wishes to show cause by alleging fraud on the part of the plaintiff must do so by demonstrating the existence of facts from which the inference of fraud may be drawn. A mere general assertion of fraud, even if sworn to by the defendant, will not suffice.
It is sufficient if the material facts are stated with particularity.8
[27] Sections 51 and 52 of the Land Transfer Act provide that fraud must be that of the registered owner or the registered owner’s agent.
[28] In my view, the defendant has not put forward sufficiently particularised allegations of fraud to demonstrate an arguable defence.
7 Jessica Gorman and others, above n 6, at [HR5.26.08(1)].
8 At [HR12.9.06].
[29] I am satisfied that the defendant has no defence to the plaintiff’s claim on the basis of fraud.
Corporeal and incorporeal property
[30] The precise allegations made by the defendant in this regard are not clear. However, the alleged defence appears to be that the defendant has a possessory title which is separate and independent to the legal title transferred to the plaintiff by the mortgagee and that she needs to be paid money in relation to that possessory title. The defendant seems to be alleging that the fact that she has not been paid any money amounts to “theft” and that the plaintiff has been “deceived” by the mortgagee.
[31] However, as submitted by Mr Clark, for the plaintiff, it seems that the defendant has confused the concept of a possessory title that stems from a proper interest in the land with her simply being in possession with no interest in the land.
[32] As submitted by Mr Clark, under the Torrens system encapsulated in the Land Transfer Act, any legitimate possessory title must come from the legal estate as recorded in the register. The defendant has no legitimate possessory title and therefore it cannot be taken from her and amount to “theft”.
[33] Again, I am satisfied that the defendant has no defence to the plaintiff’s claim on this basis.
Allodial title
[34] The defendant also contends that the plaintiff has not appreciated the difference between “possessory title and ownership contained in allodial title which is corporeal land, as opposed to fee simple title which is incorporeal land (of no substance)” and that she is “in possession of corporeal land with the allodial title”.
[35] However, there is clear authority that because the doctrine of tenure governs the ownership of and use of land in New Zealand, there can be no room for allodial interest. In Rural Bank v The Official Assignee, the Court held: 9
Because the doctrine of tenure governs the ownership and use of land in New Zealand, there can be no room for allodial interests, that is to say estates held in absolute ownership without acknowledgment to a superior (ibid) In the case of New Zealand fee simple interests, that superior is always the Crown. It follows that in New Zealand, the Crown must always be the proprietor of any land for which no subject can show title…
[36] Again, I am satisfied that the defendant has no defence to the plaintiff’s claim on this basis.
Mortgagee default
[37] The defendant makes a number of allegations against the mortgagee. The allegations are again unclear.
[38] The notice of opposition appears to allege that the plaintiff must show that there has been proper default under the mortgage for the mortgagee to have the right to sell the property pursuant to the powers of the mortgage. As submitted by Mr Clark, this is not correct. The plaintiff is protected by s 184(2)(c) of the Property Law Act 2007, which provides:
184 Protection of purchaser at sale by mortgagee
(1)This section applies to –
(a)a person who purchases mortgaged property from the mortgagee or a receiver (excluding the mortgagee if the mortgagee is the purchaser); and
(b)…
(2)The person—
…
(c)need not inquire whether—
(i)there has been a default; or
9 Rural Banking and Finance Corporation of New Zealand Ltd v Official Assignee [1991] 2 NZLR 351 (HC) at 356.See also Re Body Corporate 201036 [2016] NZHC 2035 at [12].
(ii)in the case of personal property, the property is at risk; or
(iii)any notice required to be given by this Part has been duly given; or
(iv)the sale is otherwise necessary, regular, or proper.
(3)The person is protected from liability under subsection (2) (except in the case of fraud of which that person was aware) even if, at the time of purchase or other acquisition of the property, that person had actual notice that—
(a)there has not been default; or
(b)in the case of personal property, the property is not at risk; or
(c)the sale is otherwise unnecessary, irregular, or improper.
[39] It is also clear from s 184(2)(a) and (b) of the Property Law Act that the purchaser is not answerable for any loss, misapplication, or non-application of the purchase monies, nor to see to the application of the purchase monies.
[40] Again, on the basis of the material before the Court, I am satisfied that the defendant does not have an arguable defence to the plaintiff’s claim on the basis that the plaintiff did not make inquires as to the default.
Other allegations made by the defendant in the papers filed
[41] The defendant contends in the notice of opposition that the plaintiff has no evidence of a sale and purchase contract. However, the plaintiff has attached a copy of the relevant sale and purchase contract to his affidavit sworn on 12 June 2023.
[42] The defendant also contends in the notice of opposition that the plaintiff knew there was a dispute between her and the mortgagee. However, the plaintiff states in his reply affidavit of 15 September 2023 that he did not know of any dispute and still does not know the basis for the alleged “dispute”.
[43] The defendant also contends in the “counterclaim” document that the mortgagee is a “usufructuary” and that the loan application was presented as a “promissory note”; and that there has been some form of “debt bondage” and she has been deceived by the mortgagee and this is a “crime of slavery” It is not clear how
these allegations are relevant and give rise to an arguable defence to the plaintiff’s claim.
[44] In the notice of opposition and “counterclaim” document, the defendant also refers to various provisions of the Property Law Act 2007, the Senior Courts Act 2016, the Crimes Act 1961 and the Contracts and Commercial Law Act 2017. Again, it is not clear how these provisions are relevant and give rise to an arguable defence to the plaintiff’s claim.
[45] In the “counterclaim” document, the defendant seeks damages including “for the value of the original promissory note” and “the sum of all monies paid up to the cessation of her payments” and “for pain and injury the value of the mortgage” and “cost of court, loss of income, travel and legal costs 30,000”. However, the defendant does not identify who she is claiming the damages against (it appears that it may be the mortgagee rather than the plaintiff), or the basis of the damages claimed, or the quantum of three of the heads of damage. The defendant also seeks an order that the mortgagee be put into statutory management. Again, it is not clear how these claims are relevant and give rise to an arguable defence to the plaintiff’s claim.
Summary
[46]I am satisfied that the defendant has no defence to the plaintiff’s claim.
Result
[47] My formal orders are set out in the results judgment dated 1 November 2023 at [7]-[8].
Associate Judge Skelton
Solicitors:
Wisheart Macnab & Partners, Blenheim for Plaintiff
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