Cockrell v Ward - [2013] NZHC 2368

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7155 [2013] NZHC 2368

BETWEEN BRAD & ELLEN LOUISE COCKRELL, as Trustees of the COCKRELL FAMILY TRUST
Plaintiffs

ANDRUSSELL STUART WARD Defendant

Hearing: 22 August 2013

Appearances: Mr G Stringer and Ms A King for Creditors/Plaintiffs
Mr R Ward Debtor/Defendant

Judgment: 11 September 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
11.09.13 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

COCKRELL, as Trustees of the COCKRELL FAMILY TRUST v WARD [2013] NZHC 2368 [11 September
2013]

Background

[1] The plaintiffs purchased a property at mortgagee sale in September 2012. The mortgagee was the ANZ bank. The defendant was the mortgagor. Settlement of the transaction took place on 18 October 2012. The transaction is noted on the computer freehold register maintained by Land Information New Zealand as being “an exercise of power of sale in Mortgage 7759360.3”. The defendant however declined to vacate the property. He had entered into an arrangement for the sale of the property to a third party which post-dated the date of the mortgage being granted to the ANZ. This arrangement was accompanied by a tenancy back to him. In a judgment which I issued 18 December 2012 I took the view that such arrangements were not binding upon the mortgagee and did not prevent it from passing title
together with vacant possession to the plaintiffs.1 An order for possession of the

property was made.

[2] On 20 December 2012 the sheriff took steps to have Mr Ward vacate the premises which in fact occurred. The deputy sheriff noted the possession order as having been executed on that date. The position since then is not clear. The defendant produced photographs in evidence which he claimed showed the male plaintiff and another person who he alleged were trespassing in the aircraft hangar which is situated on the property, this having taken place sometime in the period from October to February 2013. It would therefore seem that the defendant has continued to access the property even after December 2012 but nothing in particular turns upon this and it is unnecessary to come to any firm conclusion on that point.

[3] As part of the judgment entered against Mr Ward on 18 December 2012, a costs order was made directing him to pay costs of $18,084.47. He has declined to pay that costs award and as a consequence the plaintiffs served him with a demand. On 9 May 2013 Mr Ward applied to set the bankruptcy notice aside. The grounds which the defendant puts forward for setting aside the bankruptcy notice are that the
plaintiffs are actually in debt to him to the extent of $213,775.00. The defendant

1 Cockrell v Ward [2012] NZHC 3434.

takes the position that he has a counterclaim, set-off, or cross demand against the judgment creditors, the plaintiffs, that equals or exceeds the amount claimed by the judgment creditors and…

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 Cockrell v Ward

Details

AGLC: Cockrell v Ward [2013] NZHC 2368
Case: [2013] NZHC 2368
Decision Date: 11 September 2013

CaseChat Overview and Summary

The plaintiffs, trustees of the Cockrell Family Trust, sought to enforce a statutory demand for $18,084.47 against the defendant, Russell Ward. The defendant sought to set aside the bankruptcy notice on the basis that the plaintiffs were in debt to him to the extent of $213,775.00. The defendant raised various counterclaims and interlocutory applications, which the court had to determine. The court found that the fixtures on the property had become the property of the plaintiffs, and that the defendant's claims for damage to crops, loss of organic certification, and other damages arising from the plaintiffs' actions on the property were not reasonable causes of action. The court also found that the defendant's claims for damages for daily breaches of the peace and loss of grazing income could not succeed. The court considered the defendant's claims for the value of chattels left on the property, including hay, water tanks, and various other items, but found that the claims were not substantiated. The court dismissed the defendant's application for an order setting aside a bankruptcy notice, finding that the defendant had not demonstrated a claim that could be equal to or greater than the judgment debt. The court ordered the parties to confer on the matter of costs and file memorandums if they were unable to agree.

Orders