Cribb v FM Custodians Ltd - [2018] NZCA 183

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA432/2017
[2018] NZCA 183

BETWEEN	ROBERT HOANI CLIFFORD CRIBB AND KAREN LYNNE STEVENS Appellants
AND	FM CUSTODIANS LIMITED Respondent

Hearing:	8 March 2018
Court:	Asher, Brewer and Collins JJ
Counsel:	S A McKenna and J A Alchin-Boller for Appellants N L Penman-Chambers and R W Belcher for Respondent
Judgment:	6 June 2018 at 11 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

The issue in this appeal is whether a mortgagee selling a property occupied by non-owners under its power of sale is entitled to recover the costs of removing and storing the non-owners’ chattels. In the High Court the statement of claim of the respondent mortgagee, FM Custodians Ltd (FM Custodians), pleaded that the appellants, Robert Cribb and Karen Stevens, trespassed by leaving their chattels on the mortgaged property after they were given notice to vacate. It asserted that, as involuntary bailee of the trespassing chattels, it acted reasonably in removing and storing the chattels. It claimed the costs associated with that removal and storage. The statement of defence of Mr Cribb and Ms Stevens alleged that the removal of the chattels was unlawful, and asserted a counterclaim in trespass based on FM Custodians’ removal of the chattels. After a short trial Woolford J upheld the claim of FM Custodians, and that judgment is the subject of this appeal.[1]

Background

[1]FM Custodians Ltd v SOS Investments Ltd [2014] NZHC 817.

There is a long and unfortunate history of dealing between FM Custodians and Mr Cribb, which we do not need to traverse in detail. The land in question is a substantial residential property at 103 Te Awa Road, Hamilton. It was owned by SOS Investments Ltd (SOS). Mr Cribb was SOS’s sole director, and was a shareholder of the company. There was a mortgage of the property to FM Custodians. SOS did not make loan payments and was in default of its mortgage obligations.
On 7 November 2013 FM Custodians filed High Court proceedings seeking an order for possession of the property as mortgagee. On 17 April 2014 the High Court made an order in favour of FM Custodians directing SOS to deliver possession of the property to it.[2] This decision was appealed to this Court and the appeal was unsuccessful.[3]
[2]At [58].
[3]SOS Investments Ltd v FM Custodians Ltd [2015] NZCA 380.
Following that decision, on 19 August 2015 FM Custodians’ solicitors wrote to SOS’s solicitors by email requiring Mr Cribb to vacate the property and deliver up the keys by 26 August 2015. On 21 August 2015 Mr Cribb’s solicitor replied advising that Mr Cribb would “cooperate … regarding possession” and invited FM Custodians’ solicitors to enter into discussions to make arrangements in that regard. This email on…

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 Cribb v FM Custodians Ltd

Details

AGLC: Cribb v FM Custodians Ltd [2018] NZCA 183
Case: [2018] NZCA 183
Decision Date: 6 June 2018 at 11 am

CaseChat Overview and Summary

Cribb and Stevens appealed against a decision of Woolford J that found them liable for the costs of removal and storage of their chattels from a property owned by SOS Investments Ltd and mortgaged to FM Custodians Ltd. The property was sold by FM Custodians under its power of sale. The appellants had been given notice to vacate the property but failed to do so. The sheriff took possession of the property on behalf of FM Custodians and the chattels were removed and stored. The appellants claimed that the removal was unlawful and that FM Custodians was not entitled to recover the costs. The appeal was dismissed. The Court found that FM Custodians had a right to possession of the property by virtue of the order of the High Court. It had the right to take possession of the property when it did. The appellants had notice that they had to vacate and take away any chattels that happened to be on the property. FM Custodians was entitled to be compensated for expenditure incurred in the fulfilment of the duty of care imposed on it. It had acted lawfully and reasonably in removing and storing the chattels. The costs of removal and storage were reasonable. The appellants' conduct in taking no meaningful action in relation to the chattels until approximately 18 months after FM Custodians took possession, and refusing to cooperate in giving up vacant possession, were not.

Orders