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 hardship she would experience if she is required to vacate the property.

Discussion

[9]                 The general principles governing the grant of interlocutory or interim injunctions are well established. The Court follows a three-step approach, assessing:3

(a)whether there is a serious question to be tried;

(b)where the balance of convenience lies; and

(c)the overall justice.

[10]              I am satisfied that there is a serious issue to be tried. The plaintiffs are the registered owners of the property having purchased the property from ASB via mortgagee sale. On registration of a transfer executed by a mortgagee pursuant to a sale of the mortgaged land, the estate or interest of the mortgagor passes to and vests in the purchaser, freed of and discharged from liability under the mortgage.4 A purchaser who acquires fee simple ownership of a property in good faith for valuable

3      Kwok v HND Holding Ltd [2024] NZHC 1153 at [7], citing NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12] and affirmed in Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344, [2020] NZCCLR 29 at [23]. See also Price (as trustees of the Price Karaka Trust) v Killarney Capital Ltd [2023] NZHC 2753, (2023) 24 NZCPR 574 at [38].

4      Land Transfer Act 2017, s 103.

consideration is protected against any issues with the mortgagee’s title by s 51(1) of the Land Transfer Act 2017.5

[11]              Any issues that Ms O’Connell has with ASB’s conduct prior to the mortgagee sale are between her and ASB. Based on what I have heard, these issues do not affect the plaintiffs’ legal ownership of the property. As registered owners of the property, the plaintiffs are entitled to vacant possession.

[12]              It is unfortunate if Ms O’Connell was unaware that the plaintiffs intended to take possession of the property immediately on settlement, although I note that is the usual case. While this misunderstanding is regrettable, that does not mean that the plaintiffs are not entitled to have Ms O’Connell vacate the property.

[13]              The plaintiffs are seriously prejudiced by being denied access to their property. I accept that there is a risk of damage to the property by Ms O’Connell or her supporters. The plaintiffs have filed a copy of a Facebook post in which Ms O’Connell has put a public call out for support at the property.

[14]              The plaintiffs are currently in breach of the terms of their house and contents insurance policy as they are unable to change the locks and obtain an electrical warrant of fitness for the property. Furthermore, the plaintiffs are unable to rent the property to service their mortgage to Westpac New Zealand Ltd which places them at risk of default.

[15]              In view of the strength of the plaintiffs’ claim and the ongoing prejudice to them from being denied vacant possession of the property, I am satisfied that the overall justice favours an order being made.

5      Frazer v Walker [1967] NZLR 1069 (PC).

Result

[16]I order:

(a)The defendant and any other occupants  to  vacate  the  property  at 255 Range Road, Papamoa Beach, Tauranga by Monday 9 June 2025 at 5.00pm and not to enter the property until further order of the Court.

(b)The defendant will pay the plaintiffs’ costs on a 2B basis together with disbursements.

[17]The proceeding will be listed for call on a date to be advised by the Registrar.

Gardiner J