Ford v Strangwick - [2019] NZHC 614

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-557

[2019] NZHC 614

BETWEEN
PETER LESLIE FORD

Plaintiff

AND

ALYSSA AILENE STRANGWICK and TRAVIS BRADLEY STRANGWICK

Defendants

Hearing: 26 March 2019

Appearances:

R Laurenson for plaintiff

No appearance by or for defendants

Judgment:

28 March 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] This is an application by the plaintiff for judgment by default pursuant to r 15.9 of the High Court Rules 2016. The plaintiff is entitled to seek such judgment because the defendants have not entered a defence or taken any other step in the proceeding. On 10 December 2018 Mallon J made an order to the effect that the defendants had been adequately served with the originating documentation, so there is no issue about service. The plaintiff proceeds on the basis that, because his claim is not for a liquidated money sum, he must formally prove his case.1

[2] The formal proof hearing took place before me on 26 March 2019. The evidence was in affidavit form. Mr Laurenson took the Court through the evidence, and then made brief submissions in support.

1 Another route for him may have been pursuant to r 15.8 which relates to claims for the recovery of land or chattels.

FORD v STRANGWICK [2019] NZHC 614 [28 March 2019]

[3]The background and the basis for the claim can be outlined briefly.

[4] Prior to 15 April 2014 the plaintiff was the registered owner of a property situated at 36 Akatea Road in Lower Hutt. The plaintiff owns other properties in the near vicinity. Earlier in that year the plaintiff’s step child, the first-named defendant, Alyssa Strangwick, and the second-named defendant, her husband, Travis Strangwick, who apparently reside in Melbourne, approached the plaintiff for assistance in order to raise funds for a business venture. The plaintiff wished to assist his step daughter. He tried to raise a loan on the security of 36 Akatea Road but was unable to do so given that he was retired with no income other than superannuation. Accordingly, the plaintiff’s evidence is, the parties entered into an oral agreement, the key components of which were:

(a)that the plaintiff would transfer to the defendants title to 36 Akatea Road for nil consideration in order to enable them to use the property as security for a personal loan;

(b)the plaintiff was to remain the beneficial owner of the property;

(c)the loan was not to exceed $100,000;

(d)the property would be transferred back to the plaintiff once the loan was repaid.

[5] What then happened was that the parties jointly engaged one solicitor to put in place the necessary arrangements, the plaintiff duly transferred title to the defendants, the defendants borrowed from one lender approximately $70,000 which borrowing was secured over 36 Akatea Road by way of first-registered mortgage, all as agreed. Subsequently, the defendants — for whatever reason — were unable to service the loan. The loan was transferred by the original…

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 Ford v Strangwick

Details

AGLC: Ford v Strangwick [2019] NZHC 614
Case: [2019] NZHC 614
Decision Date: 28 March 2019

CaseChat Overview and Summary

This case concerns an application by the plaintiff, Peter Leslie Ford, for judgment by default against the defendants, Alyssa Ailenne Strangwick and Travis Bradley Strangwick. The plaintiff seeks to have legal title to a property at 36 Akatea Road, Lower Hutt, vested in him, subject to an existing mortgage. The defendants, who have not entered a defence or taken any other step in the proceeding, are in default. The plaintiff has provided evidence that the property was transferred to the defendants under an oral agreement that the plaintiff would remain the beneficial owner of the property and that it would be transferred back to him once a loan secured by the property was repaid. However, the defendants have defaulted on the loan, and the mortgagee is seeking to foreclose. The plaintiff's primary legal issue is whether the Court has jurisdiction to make the order he seeks. The Court has found that it has jurisdiction under its general equitable powers and section 52(1)(h) of the Trustee Act 1956. The Court has ordered that the defendants hold the legal title to the property on trust for the plaintiff as the beneficial owner, that the property be transferred from the defendants to the plaintiff, and that any necessary documentation be signed by the Registrar of the High Court on the defendants' behalf. The plaintiff is also entitled to his costs on a 2B basis, together with disbursements which may be fixed by the Registrar.

Orders