Advanced Securities Limited v Burke HC Tauranga CIV 2007-470-143

[2007] NZHC 1997

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2007-470-143

BETWEEN  ADVANCED SECURITIES LIMITED Plaintiff

ANDJULIAN PAUL BURKE AND GILLIAN ELIZABETH BURKE

Defendants

Hearing:         15 August 2007

Heard at Auckland by telephone

Appearances: Mr Braun for plaintiff

Mr Burke in person

Judgment:      15 August 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE [form of judgment]

Counsel

Harkness Henry, Private Bag 3077, Hamilton

Copy:

Mr and Mrs Burke, 1911 State Highway 29, Lower Kaimai, Tauranga

ADVANCED SECURITIES LIMITED V BURKE HC TAU CIV 2007-470-143 15 August 2007

[1]      When I gave judgment in this matter I noted at paragraph  20 that the plaintiff was prepared to limit its summary judgment to the position as at the end of May

2006.  The relevance of that month is that is when the default occurred under the loan arrangements.  I went on to note that the judgment would be on the basis that it would leave –

… any additional claims it might have against the defendants to be litigated in the ordinary way.

[2]      The  judgment  therefore  recognised  that  the  plaintiff’s  were  limiting  the amount of the judgment to be entered by way of summary judgment to an amount that was less than what they considered was their overall entitlement.   That entitlement may include additional sums but those additional sums could only be worked out following a further phase in the proceedings after the summary judgment application  had been disposed of.  My judgment therefore did not adjudge the entire amount owing by Mr and Mrs Burke to the plaintiff.   It may be of course that ultimately nothing further is found to be owing.   I do not know.  But the important point is that the summary judgment I entered was of an interim kind and did not give a definitive ruling fixing the entire amount that the Burke’s owed to the plaintiff.

[3]      That is important because when I asked for a draft judgment to be submitted I had not anticipated that there would be a further round of submissions on substantive legal matters.  What has now occurred is that Mr Burke has read the judgment as fixing the amount that is owed by the defendants to the plaintiff and proceeds from that conclusion to the further  conclusion  that  the  plaintiff  as  mortgagee  can  be compelled to give a discharge of its mortgage over the various titles in return for payment  of  the  sum  which  I  adjudged  was  payable  in  terms  of  the  summary judgment.    But  that  approach  is,  with  respect  to  Mr  Burke,  fallacious.    The mortgagee is entitled to retain its security until the full amounts that are secured by its mortgage have been paid or have been tendered.  Usually that process involves the parties agreeing how much the mortgagor has to pay before the mortgagee can be compelled to provide a discharge.  In this case no agreement is apparently possible and the issue will have to be determined in further proceedings.   They could be

proceedings for the redemption of the mortgage or alternatively the plaintiff could amend its pleadings to seek further relief post-summary judgement giving a declaration or some other remedy.  It is not necessary for me to map out exactly the course  the  proceedings  might  take  from  this  point  forward,  all  I  am  trying  to illustrate is that there is no power on my part, at this point, to direct the discharge of the mortgage.   Quite apart from anything else the figure for  redemption  is  not known.

[4]      When the plaintiff commenced its proceedings it filed the usual affidavit setting out the material that it relied upon to give judgment and that included the section 92 notice which the plaintiff served on Mr and Mrs Burke and which was dated 25 September 2006.  That notice made reference to the mortgagee’s power to take possession and that in turn reflected the terms of the agreement between the parties.  My recollection is that there was no argument at the hearing before me as to whether or not the plaintiff was in fact entitled to seek an order for possession.  The arguments that were presented to me were concerned with different matters which I have attempted to address in my judgment of 18 July 2007.  I noted in my judgment that Mr and Mrs Burke had filed a Notice of Opposition which was in the form of a statement of defence responding to the plaintiffs statement of claim.  That was not a problem because it substantially set out what their defence was.  In essence the issue really came down to whether or not the mortgage had improperly declined to extend the loan which had been made to Mr and Mrs Burke.  The question of the power to take possession was not a matter which  was the subject of a substantial dispute at the hearing before me.  For that reason I do not understand there to be any proper basis upon which I could now decline to approve the form of judgment that has been submitted by the plaintiff in terms of my judgment and which is on the Court file in draft form, as an annexure to the memorandum of counsel for the plaintiff dated 20

July 2007.

[5]      I wish to stress that the sole matter that was to be raised before me today was the form of that judgment and I take the view that the plaintiff’s judgment is one that it is entitled to seal having regard to the scope of the dispute before me and the outcome that I indicated in my judgment.

[6]      It  follows  that  other  matters  that  Mr  Burke  has  raised  with  me  today, including the question of redemption of the mortgage are simply not matters that are on the table for discussion when it comes to approval of the form of judgment.

[7]      Obviously  I  remain  hopeful  that  the  parties  can  come  to  some  sort  of negotiated conclusion to matters, but I can not compel either side to make any particular concessions or enter into any particular agreements.  If the plaintiff wishes to seal its judgment and then enforce it, then on the base of the proceedings as they presently stand, that is what its entitled to do.

[8]      My conclusion is therefore that the form of judgment submitted for sealing correctly reflects my judgment and is one to which the plaintiff is entitled.

J.P. Doogue

Associate Judge