Adcock v Brancott - [2023] NZHC 3136

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…

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 Adcock v Brancott

Details

AGLC: Adcock v Brancott [2023] NZHC 3136
Case: [2023] NZHC 3136
Decision Date: 7 November 2023

CaseChat Overview and Summary

Ian Gregory Adcock, the plaintiff, sought summary judgment against Rachel Ruby Grace Brancott, the defendant, for an order that Brancott vacate the property located at [property address] and deliver up vacant possession to Adcock. Brancott opposed the application, but failed to present a defence that raised a real question to be tried. The court was required to decide whether Brancott had any defence to Adcock's claim for possession of the property. The court considered the relevant legal principles and statutory provisions, including the Land Transfer Act 2017 and the Property Law Act 2007, and found that Adcock's title was free from all other estates and interests unless they were registered or noted on the register. The court also found that Brancott's allegations of fraud, corporeal and incorporeal property, allodial title, and mortgagee default did not establish an arguable defence. Therefore, the court granted Adcock's application for summary judgment and ordered Brancott to vacate the property and deliver up vacant possession to Adcock. The court's orders were formalised in the results judgment dated 1 November 2023.

The court considered the evidence and submissions presented by both parties and concluded that Brancott had not established any defence to Adcock's claim for possession of the property. The court found that Adcock's title was valid and free from any adverse estates or interests, and that Brancott's allegations of fraud, corporeal and incorporeal property, allodial title, and mortgagee default were either unsupported or irrelevant to the claim. The court also noted that Brancott had failed to identify the basis or quantum of the damages claimed in her counterclaim, and that her claims against the mortgagee were not relevant to Adcock's claim. Therefore, the court was satisfied that Brancott had no defence to Adcock's claim and granted summary judgment in Adcock's favour. The formal orders were set out in the results judgment dated 1 November 2023.

Orders