Cockrell v Ward - [2012] NZHC 3434

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7155 [2012] NZHC 3434

BETWEEN BRAD & ELLEN LOUISE COCKRELL AS TRUSTEES OF THE COCKRELL FAMILY TRUST
Plaintiffs

ANDRUSSELL STUART WARD Defendant

Hearing: 14 December 2012

Appearances: Mr G Stringer for Plaintiffs
Mr Ward in person

Judgment: 18 December 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on
18.12.12 at 10 a.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Inder Lynch, P O Box 76,745, Manukau, Auckland - g.stringer@inderlynch.co.nz
Mr R S Ward – russ.ward@hotmail.com

COCKRELL V WARD HC AK CIV-2012-404-7155 [18 December 2012]

Background

[1] The plaintiffs purchased the property which is the subject of these proceedings at mortgagee sale. The property was sold by the ANZ National Bank Limited (“the Bank”) which was the mortgagee. The Bank’s solicitors advised Mr Ward that the power of sale had become exercisable on 9 July 2012. Tenders were sought. The plaintiffs’ tender of $707,400 plus GST was accepted. The settlement date provided for in the tender documents was 16 October 2012.

[2] On or about 21 September 2012 Mr Ward wrote to the Bank’s solicitors advising that he had earlier sold the property to a third party, Mr Hubert Hays. This he considered was a ground for preventing the Bank from selling the property. The agreement recorded that the property was sold by Mr Ward to Mr Hays for $1 and that the possession date was to be 25 October 2011. In the section of the agreement appropriate for that purpose there was described a tenancy pursuant to which Mr Ward himself was the tenant with the rent being $100 and the term “ongoing”. The agreement also contained the statement, “vendor to retain title”. In the affidavit that he filed in support of the “statement of defence” Mr Ward produced a further copy of this agreement. He also produced a tenancy agreement which apparently was separate from the agreement for sale and purchase, it too being dated 25 October
2011.

[3] Mr Ward who was the mortgagor applied for an injunction to stop the sale but his application was dismissed by Lang J in a judgment he gave on 15 October
2012. One of the grounds that Mr Ward advanced was the purported sale to Mr Hays. The Judge at paragraph [18] of his judgment recorded that he had told Mr Ward during argument that the purported sale to Mr Hays could not take priority or precedence over the Bank’s power of sale, the mortgage having been executed and registered long before Mr Ward entered into the agreement for sale and purchase. There is no need to traverse this ground again. I respectfully agree with the remarks of Lang J. The same outcome to the issue being raised in this case is inevitable. The Hays agreement cannot stand in the way of the plaintiffs. They are now the registered proprietors of the property.

[4] Since they acquired the property the…

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 [2012] NZHC 3434
Case: [2012] NZHC 3434
Decision Date: 18 December 2012

CaseChat Overview and Summary

The plaintiffs, Brad and Ellen Louise Cockrell, acting as trustees of the Cockrell Family Trust, brought an action against Russell Stuart Ward seeking to recover possession of a property. The property was sold by ANZ National Bank Limited at mortgagee sale and the plaintiffs' tender of $707,400 was accepted. Ward, the defendant, who was the mortgagor, attempted to prevent the sale by claiming he had sold the property to a third party, Mr Hubert Hays, but his application for an injunction was dismissed. The plaintiffs sought summary judgment to recover the property and for Ward to vacate it. Ward argued he was a tenant of the property and that the plaintiffs only had a limited interest in it. The primary issue was whether Ward's agreement with Hays was a sham and if it qualified as a residential tenancy agreement. The court found that the agreement was a sham as it did not reflect the true agreement between the parties and it did not fulfil any legitimate commercial purpose. The court also concluded that the agreement did not qualify as a residential tenancy agreement as it did not relate to any residential premises. The court granted the plaintiffs' application for summary judgment and ordered Ward to vacate the property. Costs on the application for summary judgment were reserved.

Orders