FM Custodians Limited v Cribb - [2017] NZHC 1562

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000266 [2017] NZHC 1562

BETWEEN
FM CUSTODIANS LIMITED

Plaintiff

AND

ROBERT HOANI CLIFFORD CRIBB AND KAREN LYNNE STEVENS Defendants

Hearing: 21 June 2017

Appearances:

N Penman-Chambers and R W Belcher for Plaintiff
S McKenna and J Alchin-Boller for Defendants

Judgment:

7 July 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 7 July 2017 at 1:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel Hesketh Henry, Auckland Grantham Law, Hamilton

FM CUSTODIANS LIMITED v CRIBB & ANOR [2017] NZHC 1562 [7 July 2017]

Introduction

[1] The plaintiff, FM Custodians Limited, took possession of a property at

103 Te Awa Road, Hamilton (the property), on 9 September 2015, pursuant to an order of the High Court dated 17 April 2014, which was upheld in a decision of the Court of Appeal dated 18 August 2015.1 At the time the plaintiff took possession of the property, its principal occupiers were the defendants, Robert Hoani Clifford Cribb and his wife, Karen Lynne Stevens. The defendants were then in Europe on an extended business trip. The plaintiff accordingly made arrangements with a
professional moving and storage company, Allied Pickfords, to pack and store the defendants’ chattels in five containers at a storage facility. Mr Cribb did not provide an address to which his and his wife’s chattels could be delivered until 15 March
2017. The chattels were therefore not returned to them until 28 March 2017.

[2] The plaintiff now claims the sum of $51,586.40 from the defendants for packing, transport, storage and insurance of their chattels between 9 September 2015 and 28 March 2017.

Factual background

[3] The registered proprietor of the property at all relevant times was SOS Investments Limited (the company). As at the date of the Court of Appeal decision Mr Cribb was the company’s sole director. He was also a shareholder of the company.

[4] Following release of the Court of Appeal decision, the plaintiff’s lawyers wrote to the company’s lawyers on 19 August 2015 as follows:

We write further to the release of the Court of Appeal’s decision in this matter. In accordance with that decision the possession order made by Associate Judge Doogue stands and our client is entitled to immediate possession of the property. If Mr Cribb is no longer in occupation of the property, please confirm by return and arrange to have all keys to the property delivered to us. If Mr Cribb is still in possession of the property, our client is prepared to give Mr Cribb to 26 August 2015 in which to vacate the property and deliver up all keys to the property. We would appreciate it if you could take instructions and come back to us today.

1 SOS Investments Ltd v FM Custodians Ltd [2015] NZCA 380, affirming FM Custodians Ltd v
SOS Investments Ltd [2014] NZHC 817.

[5] The company’s lawyers responded on 21 August 2015 as follows:

I…

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.

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Details

Case: [2017] NZHC 1562
Decision Date: 7 July 2017

CaseChat Overview and Summary

FM Custodians Limited claimed against Robert Cribb and Karen Stevens for costs incurred in the packing, transport, storage, and insurance of their chattels from the time the plaintiff took possession of their property until the chattels were returned. The defendants argued that the plaintiff did not have possession of the property at the time the chattels were removed and that the plaintiff did not revoke permission for the chattels to remain on the property. The court had to determine the point at which the plaintiff became a mortgagee in possession, whether the plaintiff revoked permission for the chattels to remain, whether reasonable notice for their removal was given, and whether the plaintiff's costs were properly incurred. The court held that the plaintiff became a mortgagee in possession from the date of its application to the court for a possession order, once the court had granted the order. The plaintiff revoked permission for the chattels to remain when it served a possession order on the defendants' lawyers. The plaintiff gave reasonable notice for the removal of the chattels, and the costs were properly incurred. Judgment was entered against the defendants in the sum of $51,586.40 together with interest and costs.

Orders