Dhatt v Davies
[2014] NZHC 1589
•8 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001389 [2014] NZHC 1589
BETWEEN PARAMJIT SINGH DHATT
Plaintiff
AND
RHYS JAMES DAVIES Defendant
Hearing: 8 July 2014 Appearances:
A Shinkarenko for Plaintiff
Defendant in PersonJudgment:
8 July 2014
ORAL JUDGMENT OF VENNING J
Solicitors: Shobna & Co Law Office, Auckland
Copy to: A Gilchrist/A Shinkarenko, Auckland
Defendant
DHATT v DAVIES [2014] NZHC 1589 [8 July 2014]
[1] In this proceeding the plaintiff Mr Dhatt seeks an order for possession of a property at 46 Walpole Avenue, Hill Park, Manurewa and a writ of possession of the property.
[2] The application was called before the Court for the first time this morning. The defendant Mr Davies appeared. Mr Davies opposes the application for possession and also sought an adjournment. Some preliminary issues arise.
[3] The first is the name of the defendant in the proceedings. The defendant is cited as Rhys James Davies but Mr Davies pointed out that his name is Rhys Jenkins-Davies. I note that the title to the property in issue records that the proprietors at relevant times were Rhys James Davies and Denva Dannel Allan Jenkins. That explains why in these proceedings the defendant has been cited as Rhys James Davies.
[4] It is clear from a discussion with Mr Davies that he is the person who formerly owned the property at Walpole Avenue and still remains in possession of the property. The proceedings are properly directed at him.
[5] Next, an issue arises as to service and the time that has elapsed since service of the proceedings. The plaintiff relies on an exchange of correspondence between a solicitor, Mr Cogswell, and counsel Mr Gilchrist to show the proceedings were served on 12 June.
[6] On 12 June 2014 Mr Cogswell directed an email in the following terms to Mr
Gilchrist, counsel for the plaintiff:
I act for Rhys Jenkins-Davies.
I am authorised to accept your client’s application for an Order for possession of land.
[7] By letter in return, acknowledged as delivered to Mr Cogswell on the same date, 12 June, the proceedings were served on Mr Cogswell. Mr Davies takes the point that Mr Cogswell is not acting for him, however, Mr Cogswell had acted for Mr Davies in the past and clearly in his email of 12 June he was purporting to act for
Mr Davies at least for the purposes of service of the proceedings. I am satisfied that the proceedings were served on Mr Davies in accordance with r 6.7 given that Mr Cogswell indicated he was authorised to accept service. It is implicit in that advice that Mr Cogswell was acting as Mr Davies’ agent for the purpose of service.
[8] The next issue that arises in relation to service is that the proceedings were served on 12 June. On my calculation 18 working days have elapsed since service to today’s date. Rule 12.7 now requires 25 days notice of service. Counsel appearing this morning for the plaintiff, Mr Shinkarenko sought to abridge time in accordance with r 1.19.
[9] I am satisfied it is appropriate to abridge the time for service. The sole issue in this case is the plaintiff’s application for possession. Mr Davies has been aware for some time and well before the proceedings were served on 12 June of the plaintiff’s request for possession. By letter of 29 May 2014 the plaintiff ’s solicitor wrote to Mr and Mrs Davies advising that the property had been sold at mortgagee sale and requiring vacant possession on 6 June 2014. The matter was followed up by a letter of 5 June 2014 to Mr Cogswell.
[10] I record that for part of the period of time I have been referring to Mr Davies says he was incapacitated or unable to respond.
[11] I am satisfied the defendant has been aware of the plaintiff’s desire for vacant possession of the property since at least late May. He must have been aware, given the steps the Bank took to take the matter to mortgagee sale, that the property was to be sold and that ultimately the purchaser would be requiring vacant possession. I abridge the time for service accordingly.
[12] Mr Davies then sought an adjournment of the application. He pursued that application for adjournment on a number of bases:
(a) first, to enable him to negotiate further with the plaintiff to enable him to effectively repurchase the property;
(b)second, in order to enable him to take further legal advice about his position; and
(c) thirdly, because of his personal circumstances.
[13] I am satisfied that there would be no purpose served in any adjournment of this application. For the reasons noted above I am satisfied that the defendant has been aware of the issue for some time. He has had sufficient time to take whatever legal advice he may wish to have taken. Indeed, it appears that he has at least discussed the matter with Mr Cogswell, as the notice of opposition he has prepared is on the format used by Mr Cogswell.
[14] An adjournment would be pointless. I decline the application for adjournment. I also note the defendant has also set out in a notice of opposition the points he wishes to raise substantively.
[15] The short background to this application is that Mr Davies and his wife purchased the property at Walpole Avenue. The purchase was financed by an advance from the ANZ Bank. Mr Davies and his wife fell into arrears under the facility with the Bank. The Bank took the property to a mortgagee sale. The sale was conducted on 22 May 2014. The particulars and terms of sale recorded the sale was to be through auction by Harcourts relating to the property at 46 Walpole Avenue, Hill Park, Manurewa, more particularly described in the Certificate of Title NA6A/1128.
[16] The plaintiff Mr Dhatt was the successful purchaser at auction. He purchased for $521,000.
[17] Following the purchase as noted, notice was given to Mr Davies that the purchaser required vacant possession at settlement which was scheduled to take place on 6 June. The property settled on 6 June. Mr Dhatt is now the registered proprietor of the property. His mortgagee is Westpac New Zealand Limited, which now has a registered mortgage over the property.
[18] Mr Dhatt deposes in his affidavit in support of the application for summary judgment that from and after 29 May 2014 he has had a number of communications with Mr Davies. It is unnecessary to refer to the detail of those communications but they included the service of a trespass notice on Mr Davies. These proceedings have followed. Mr Davies remains in possession of the premises.
[19] In his submissions to the Court and also in his written notice of opposition to the application by the plaintiff Mr Davies makes the following points. First, caveat emptor – let the buyer beware. He submits that at no time was the plaintiff forced or coerced by the defendant to purchase the defendant’s family home. He refers to a number of personal matters that affect him. It is not apparent what exactly that argument is. The plaintiff bought the property at mortgagee sale as noted and is now the registered proprietor of the property. The effect of s 182 of the Land Transfer Act
1952 is that, except in the case of fraud, a purchaser for value as Mr Dhatt was, is not required to or to be concerned to inquire into the circumstances relating to any previous registered owners, their ownership or estate or interest in the property, nor is he, once registered, affected by any notice direct or constructive of any trust or unregistered interest in the absence of fraud. Knowledge of any such trust or unregistered interest itself is not to be imputed as fraud.
[20] To the extent that I understand Mr Davies alleges that either the ANZ Bank and/or Harcourts acted improperly in proceeding with the mortgagee sale, given his personal circumstances, they are matters between Mr Davies and the Bank and Harcourts but they cannot affect the position or the rights of the plaintiff Mr Dhatt.
[21] Next, Mr Davies submits the plaintiff received full disclosure of the proposed terms of sale from Harcourts and ANZ Bank. He is quite correct in that. Mr Dhatt has annexed a copy of the particulars and terms of sale to his affidavit.
[22] Mr Dhatt purchased in accordance with the terms and conditions in those particulars. It was for him to obtain vacant possession of the property. That is why he has taken the steps he has taken to obtain vacant possession.
[23] Mr Davies also referred to cl 16 of the Particulars, which confirms the vendor is selling as mortgagee, and notes that chattels were not included in the sale of the property. Mr Davies is again quite correct but he should take advice as to what rights he as the former owner of the property has in such chattels in accordance with the clause. However, none of that affects Mr Dhatt’s rights in relation to possession of the property itself including the house on the land.
[24] Next, Mr Davies submits the plaintiff’s ignorance of the laws of New Zealand are no defence. He submits the plaintiff should have done due diligence and taken legal advice or alternatively negotiated a good faith purchase of the property or allowed Mr Davies to negotiate a good faith repurchase of the property.
[25] As noted again s 182 of the Land Transfer Act is an answer to any suggestion that the plaintiff is not entitled as the purchaser for value to good title to possession. It is up to the plaintiff and his advisers whether or not he wishes to accept any offers from Mr Davies for the repurchase of the property.
[26] However, for the reasons that follow it seems extremely unlikely that that would be a realistic option for Mr Davies.
[27] Mr Davies then notes in his opposition that “the charges laid by the plaintiff are more extensive than is required to allow the plaintiff and defendant to reasonably discharge their legal obligations”; and “the charges laid by the plaintiff are not fair and reasonable to [him]”. It is not immediately apparently to the Court what Mr Davies is getting at in relation to those two points. As noted, it is unnecessary for the Court in dealing with the substantive application to go into the detail of the matters contained in Mr Dhatt’s affidavit as to the dealings between him and Mr Davies.
[28] Next Mr Davies noted in his opposition that the defendant had previously taken proceedings against the ANZ Bank. He referred to the judgment. I have taken the opportunity to consider that judgment of Peters J delivered on 11 February this year.
[29] The proceedings were taken by Mr Davies against the ANZ Bank. He sought an interim injunction to prevent the Bank from exercising its power of sale pursuant to the mortgage. The Judge notes the Bank and Mr Davies’ wife had resolved all matters between them. No doubt for that reason she is not a party to these proceedings either. The judgment records the background to the dealings between Mr Davies and the Bank and, significantly, notes that by 24 January 2014 the plaintiff and his wife owed the Bank in excess of $545,000.
[30] Having considered all matters raised on behalf of the defendant, who at that time I note was represented by Mr Cogswell, the Judge dismissed the application for an injunction on the basis that there was no serious question to be tried. She also struck out the substantive proceedings.
[31] Given those issues the matters that Mr Davies seeks to raise may be the subject of res judicata. At the least, from a practical point of view, given the recitation of Mr Davies’ position, the suggestion of any repurchase by him seems totally unrealistic.
[32] Mr Davies next submits that he has a right to occupy and he is under no obligation to share any private information relating to those rights to occupy. The difficulty again, however, for him is that the title itself does not disclose any rights to occupy. In the absence of any such express notice on the title the plaintiff Mr Dhatt is not bound by any arrangements that Mr Davies and his wife may have made in relation to rights to occupy.
[33] Mr Davies then details a number of the dealings he has had with the plaintiff which, as I have noted, are not relevant to the issues before the Court.
[34] Despite all the matters that Mr Davies raises, including his personal circumstances, there is no legal defence to the application for possession nor any basis on which the Court could decline the plaintiff’s request for a judgment for possession. The plaintiff is entitled to the order he seeks, namely an order for possession. The issue is how long the Court should give Mr Davies to provide that vacant possession.
[35] After discussion with counsel Mr Shinkarenko and Mr Davies, Mr Shinkarenko arguing for a shorter period of time, I fix the time period for Mr Davies to deliver up vacant possession of the property at 14 days from today, so by 4.00 pm on 22 July 2014.
[36] In fixing the 14 days from today I have taken into account the abridgement of time as discussed and the fact that it has been Mr Davies’ family home for a number of years. However, I balance against that the fact that Mr Davies has known for some time now that the plaintiff Mr Dhatt was seeking possession of the property.
[37] The formal order will be in accordance with the statement of claim. The defendant also known as Mr Rhys Jenkins-Davies, is to deliver up possession of 46
Walpole Avenue, Hill Park, Manurewa, as more particularly described in the statement of claim, to the plaintiff or the plaintiff’s agents by 4.00 pm on 22 July
2014.
[38] I record that I have advised Mr Davies that it would be in his interest to take some legal advice as to what constitutes chattels which he might be entitled to remove from the property as opposed to what he is obliged to leave at the property.
Costs
[39] Costs must follow the event. The plaintiff has sought an increased quantum of costs. I do not accept that anything other than the scale costs are appropriate. There will be scale costs in the plaintiff’s favour on a 2B basis for steps taken to date
and today’s hearing, which I note at a quarter of a day.
Venning J
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