Aokautere Land Holdings Limited v Turvey

[2022] NZHC 375

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-109

[2022] NZHC 375

BETWEEN

AOKAUTERE LAND HOLDINGS LIMITED

Plaintiff

AND

DARYN TURVEY

Defendant

Hearing (by VMR):

7 March 2022

Appearances:

J Mahuta-Coyle for the Plaintiff Mr Turvey in person

R Pinney for the Liquidator of Vey Group Ltd (in receivership & liq)

Judgment:

7 March 2022

JUDGMENT OF GWYN J

[1]                  The defendant, Mr Daryn Turvey, and the plaintiff, Aokautere Land Holdings Limited (Aokautere), are the first and second ranked mortgage holders, respectively, in relation to the property at 72 Webb Street, Wellington, contained within certificate of title WN441/14, Wellington Land Registration District (the property).

[2]                  The property is owned by Vey Group Limited (in receivership and liquidation) (Vey).

[3]                  The plaintiff has appointed its own receiver, who has accounted for all proceeds received in relation to the property since his appointment.

AOKAUTERE LAND HOLDINGS LIMITED v TURVEY [2022] NZHC 375 [7 March 2022]

[4]                  The defendant acquired his position as first ranked mortgage holder over the property by way of assignment of those rights to him from the Bank of New Zealand, which was the original lender to Vey.

[5]                  In December 2020, the plaintiff requested that the defendant transfer the first- ranked mortgage held by the defendant to the plaintiff, upon payment of the balance owed by the loan held by the defendant, pursuant to ss 102-103 of the Property Law Act 2007.

[6]                  The plaintiff’s documents state that, in response to the plaintiff’s request, the defendant asserted he was owed in excess of half a million dollars, rather than the approximately $75,000 loan balance transferred to him upon the assignment of the loan only two months earlier.

[7]                  The plaintiff says that on 25 February 2021, it repeated its request for a transfer and accompanied that request with a payment of the full amount assessed as outstanding under the assigned loan, being $60,445.10. The plaintiff also confirmed it would meet the defendant’s reasonable legal costs in relation to the mortgage transfer.

[8]                  On 4 December 2022 Aokautere filed a statement of claim, on notice application for interim injunction, supporting affidavit of Leslie William Fugle (the director and sole shareholder of Aokautere), undertaking as to damages and application for directions as to service.

[9]                  In its substantive proceeding the plaintiff seeks declarations under s 3 of the Declaratory Judgments Act 1908 in the following terms. That:

(a)The obligations owed to the defendant by Vey and secured by the named mortgage are limited to the BNZ loan assigned to the defendant on 4 September 2020 and exclude any other prior advances, claims or debts by the defendant that he alleges are owed to him.

(b)The balance of the assigned BNZ loan is now nil, or such other amount as the Court may find.

(c)The defendant has an obligation under ss 102-103 of the Property Law Act 2007 to transfer the named mortgage, having received:

(i)a request to transfer that mortgage; and

(ii)payment of the balance of the BNZ loan [or upon receiving such other amount as the Court may find still constitutes the BNZ loan]; and

(iii)having received confirmation that the plaintiff will meet the defendant’s relevant legal costs at the time of the transfer.

[10]              The matter was called before me in the Judge’s Chambers List this morning to consider the plaintiff’s application for interim injunction.

[11]              The papers were served on Mr Turvey,  the defendant, over the weekend and  I am grateful to him for being able to attend by telephone this morning, at short notice, notwithstanding a significant family commitment.

[12]              Aokautere seeks an order granting an interim injunction restraining the defendant from:

(a)appointing any receiver of and for the property; and

(b)exercising any mortgagee power of sale or otherwise attempting to deal with, alienate or transfer the property.

[13] After discussion, Mr Turvey indicated that he would consent to the interim orders described at [12] above. Ms Pinny, who appeared for the liquidator of the Vey Group, indicated that she abided the decision of the Court.

Outcome

[14]              Having read the documents filed by  the  plaintiff  and  after  hearing from Mr Mahuta-Coyle for the plaintiff and Mr Turvey, I am satisfied that it is appropriate to make the interim orders sought by the plaintiff, but with leave reserved for the parties to apply to the Court for any variation of the orders.

Orders

[15]I make orders in the following terms:

(a)The defendant is restrained from:

(i)appointing any receiver of and for the property; and

(ii)exercising any mortgagee power of sale or otherwise attempting to deal with, alienate or transfer the property.

[16]              Leave is reserved to both parties to apply to the Court for any variation of the orders.

[17]              I have also read the plaintiff’s application for directions as to service and make orders for service as set out at paragraph [1] of that application.

[18]The matter is to be called again in the Judge’s Chambers List on Tuesday

26 April 2022.

Gwyn J

Solicitors:

Dewhirst Law, Wellington Mr Daryn Turvey