FM Custodians Limited v Keast

[2017] NZHC 2654

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001252 [2017] NZHC 2654

BETWEEN

FM CUSTODIANS LIMITED (AS

CUSTODIAL COMPANY OF TRUSTEES EXECUTORS LIMITED, THE TRUSTEE OF THE FIRST MORTGAGE TRUST GROUP INVESTMENT FUND)

First Plaintiff

FIRST MORTGAGE MANAGERS LIMITED (as manager of the First Mortgage Trust group Investment Fund) Second Plaintiff

AND

NICHOLA JANE KEAST AND CARMEL MONICA RIORDAN (AS TRUSTEES OF THE SOHO TRUST) First Defendants

NICHOLA JANE KEAST Second Defendant

Hearing:	30 October 2017
Appearances:	D Fraundorfer and T Carlisle for Plaintiffs T J Herbert for Defendants
Judgment:	30 October 2017

ORAL JUDGMENT OF VENNING J

Solicitors:           Holland Beckett, Tauranga

Quay Law, Auckland

Copy to:            T J Herbert, Auckland

FM CUSTODIANS LIMITED v KEAST [2017] NZHC 2654 [30 October 2017]

[1]      This is an application for summary judgment.  The plaintiffs seek judgment for the principal and interest owing under the moneys advanced by the plaintiffs to the first defendants and guaranteed by the second defendant.  The plaintiffs also seek orders for possession.

[2]      An issue was raised as to the steps taken by the plaintiffs in reliance on the first Property Law Act Notice.  Despite those issues, I am satisfied that there are no reasonably arguable defences to the judgment sought by the plaintiffs in reliance on the second Property Law Act Notices which were properly issued.   That has effectively been conceded and properly so.

[3]      I make the following orders:

(a)      The plaintiffs are entitled to summary judgment against the first and second defendants for payment of the principal owing under the mortgage sum together with interest, including default interest, calculated to today’s date, 30 October 2017.  Counsel for the plaintiffs is to file a memorandum by the end of business today to confirm that sum.

(b)The plaintiffs are entitled to an order for possession under s 137 of the Property Law Act.  In relation to the rental property at 176 McLeod Road, Te Atatu South, the possession order is effective immediately. In relation to the other property, 246B Big Bay Road, Waiuku, the defendants are to provide vacant possession by 30 November 2017.

(c)      Costs are to be dealt with on the basis that counsel for the plaintiffs is to file a memorandum by Monday, 6 November 2017.   Counsel for the defendants is to file a memorandum in response by 13 November

2017.  Those memoranda are then to be referred to me for costs to be fixed.

(d)      Interest  to  continue  to  accrue  at  the  statutory  rate  from  date  of

judgment.

Venning J