Brown v O'Connell - [2025] NZHC 1489

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2025-470-000086 [2025] NZHC 1489

BETWEENJONATHAN MICHAEL BROWN and CHELSEA STORM BROWN
Plaintiffs

AND TERINA ROSE O’CONNELL
Defendant

Hearing: 6 June 2025 (telephone) Appearances: T J P Bowler for the Plaintiffs
Defendant in Person

Date: 6 June 2025

JUDGMENT OF GARDINER J

This judgment was delivered by me on 6 June 2025 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Neilsons Lawyers, Auckland

BROWN v O’CONNELL [2025] NZHC 1489 [6 June 2025]

Introduction

[1] The plaintiffs have applied without notice for an interim injunction requiring Terina O’Connell (also known as Terina Rose) and other unknown individuals who are unlawfully occupying 255 Range Road, Papamoa Beach, Tauranga1 to vacate the property.

[2] The plaintiffs are the registered owners of the property. They purchased the property by way of mortgagee sale from ASB Bank Ltd (ASB). The sale of the property settled on 21 May 2025.

[3] Ms O’Connell is the previous owner of the property. She has refused to vacate the property and has been joined at the property by supporters who are protesting ASB’s actions in the mortgagee sale.

[4] On 22 May 2025, the plaintiffs served Ms O’Connell with a trespass notice under s 4 of the Trespass Act 1980. Ms O’Connell and the other occupiers did not leave the property.

Ms O’Connell’s position

[5] I directed that the proceedings be served on Ms O’Connell and convened an urgent telephone conference to provide her with the opportunity to be heard. That conference took place on 6 June 2025 at 11.30 am.2 Prior to the conference, Ms O’Connell filed an unsigned affirmation setting out her reasons for opposing the application.

[6] Ms O’Connell has two main complaints. First, she takes issue with the mortgagee sale process conducted by ASB. She says that she tried to negotiate a solution with ASB for two years. She says that she did not consent to the mortgagee sale and that ASB overrode her and went ahead anyway.

1 Lot 1 Deposited Plan 327532 (Identifier 111985 South Auckland).
2 Two earlier attempts failed due to the Court not having a phone number for Ms O’Connell.

[7] Second, she says that she was not informed of the date that the plaintiffs were to take possession. She acknowledges that ASB’s solicitor advised her of the settlement date but says that she was told that the plaintiffs’ lawyer would contact her about vacating the property. She says that never happened. She says that, on the day after settlement, Mr Brown arrived at the property, followed by security guards and police. She says that she has been harassed.

[8] Ms O’Connell rejects the plaintiffs’ accusation that the property is at risk of damage while she remains in possession. She says that the people who have joined her at the property are there to support her through this stressful time. She highlights the emotional and financial…

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.

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Details

Case: [2025] NZHC 1489
Decision Date: 6 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Jonathan Michael Brown and Chelsea Storm Brown, the plaintiffs, have sought an interim injunction against Terina Rose O'Connell, the defendant, to vacate the property at 255 Range Road, Papamoa Beach, Tauranga, which the plaintiffs own. The plaintiffs purchased the property via a mortgagee sale from ASB Bank Ltd and have been denied access by the defendant, the previous owner, and her supporters who are protesting the sale. The central legal issues before the Court were whether the plaintiffs were entitled to vacant possession of the property and if the balance of convenience favoured the grant of an interim injunction.

The Court considered the general principles governing the grant of interim injunctions, which involve assessing whether there is a serious question to be tried, the balance of convenience, and the overall justice. The Court found that the plaintiffs had a serious issue to be tried as they were the registered owners of the property following a valid mortgagee sale. Any disputes the defendant had with the bank's conduct were irrelevant to the plaintiffs' legal ownership. The Court also concluded that the balance of convenience lay with the plaintiffs, who were being seriously prejudiced by the defendant's refusal to vacate the property. This refusal had led to the plaintiffs breaching their house and contents insurance policy and being at risk of defaulting on their mortgage to Westpac New Zealand Ltd. The Court granted the interim injunction requiring the defendant to vacate the property by 5:00 pm on Monday 9 June 2025.

The Court's final orders were that the defendant and any other occupants vacate the property by the specified time and date and refrain from entering the property until further order of the Court. Additionally, the defendant was ordered to pay the plaintiffs' costs on a 2B basis together with disbursements. The proceeding will be listed for call on a date to be advised by the Registrar.

Orders