Hay v ANZ National Bank Limited HC Auckland CIV-2011-404-2290

[2011] NZHC 721

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-2290

UNDER  Section 7(2) of the Habeas Corpus Act

2001

BETWEEN  TREVOR DAVID HAY AND GORDON WALLACE CAMERON MCNAB Applicants

ANDANZ NATIONAL BANK LIMITED Respondent

Hearing:         14 July 2011

Appearances: Applicants appearing in Person

IM Gault and HDL Steele for Respondents

Judgment:      15 July 2011 at 3:30 PM

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 July 2011 at 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

TD Hay and GWC McNab, 42A Frederick Street, Hillsborough, Auckland:  [email protected]

IM Gault, Bell Gully, Auckland:  [email protected]

HAY & MCNAB V ANZ NATIONAL BANK LIMITED HC AK CIV-2011-404-2290 15 July 2011

[1]      On 13 July 2011, Mr Hay and Mr McNab filed a document claiming to be a notice  brought  under  s 7(2)  of  the  Habeas  Corpus  Act 2001;  s 16  Judicature Act 1908; the Imperial Laws Application Act 1988; and the Overseas Investment Act 2005; Part 13 Companies Act 1993; the National Bank of New Zealand Limited Act 1985 and the National Bank of New Zealand Limited Act 1994.  The document is headed:

Notice   claiming   precedence   over   other   High   Court   business   on Thursday 14 July 2011, with application for that the High Court either hear or  refuse  the  oral  application  for  Habeas  Corpus  made  on  Thursday,

21st April 2011.

[2]      The body of the Notice sets out the remedy sought by the applicants as follows:

1.  The Applicants Trevor David Hay and Gordon Wallace Cameron McNab together made an urgent oral Habeas Corpus Application stated to be permitted by section 7(2) of the Habeas Corpus Act 2001 which was duly recorded as having been filed on Thursday 21st April 2011, but, this was not heard within “three court days”.  It is now 11th July 2001 nearly three months after this urgent Habeas Corpus Application was recorded as filed, and the applicants hereby claim precedence over all other High Court business to have their applicant heard and disposed of, or refused, in order that they might appeal in respect of the manner in which this oral application has been dealt with to establish what is proper New Zealand practice and procedure on such occasions, and the status of applications quia timet.

[3]      The grounds relied upon include:

(a) Section 9(1) of the Habeas Corpus Act stating that an application must be given precedence over all other matters before the court;

(b) Section 16 of the Judicature Act 1908 with similar provisions inherent in the jurisdiction of Queen’s Bench, as it came to New Zealand, pursuant to the  provisions  of  the  Supreme  Court  Ordinance,  and,  as  it  developed, through the Supreme Court Ordinance, the Supreme Court Act 1860, section

16 of the Supreme Court Act 1882, to the present section 16 of the Judicature

Act 1908.

(c)  Further restraints  upon the  liberty of  the  respective  persons  of  each applicants have been imposed without lawful authority upon each applicant by ANZ National Bank Limited, which in effect detain and imprison them by retaining the whole of the residue of the mortgagee sale upon the pretext of an  interpleader,  in  circumstances,  per  the  statute  in  consimile  casu, analogous to actual detention, and denial of justice.

[4]      When I saw that a major banking institution was the alleged detainer of the applicants,  it  occurred  to  me  that  an  issue  of  jurisdiction  might  arise  in  the proceeding.

[5]      My early suspicions were not dismissed when the matter was called shortly after 10:00 am yesterday morning, and Mr McNab confirmed that both Mr Hay and he had been free to walk into the courtroom and make their submissions without restraint.

[6]      I indicated to Mr McNab that a threshold issue which he needed to address was that an application for a Writ of Habeas Corpus amounts to an application to challenge the legality of a person’s detention.   I told him it was not immediately obvious to me that the Act, or the right to make such an application, could apply to either Mr Hay or him in circumstances where they were not currently detained.

[7]      In helpful oral submissions, expressed succinctly over an hour, Mr McNab advanced two grounds in support of the application for a Writ.  Briefly summarised, they were:

(a)       At the Head Office of the ANZ National Bank in Auckland, between

10:00 am  and  2:00 pm  on  21 April 2011,  Mr Hay  and  he  were detained by being fed tea and Easter buns in a manner which was “all very civilised”.   He said the hospitality was designed to keep them waiting while auctioneers instructed by the Bank conducted a mortgagee  sale  of  a  substantial  rural  property  in  North  Otago  at

2:00 pm that day.  Mr McNab said that after 2:00 pm, Mr Hay and he were told to leave the building, and that they were then marched out of  the  Bank’s  building  by seven  security  guards.    The  applicants allege that, as a result, they are likely to suffer harassment and further restraints in future.

(b)The property being sold was owned by a company in which Mr Hay owns one-third of the shares and of which Mr McNab is managing director.  As a result of the sale, the property had been transferred to

the purchaser for a price of $3.3 million.  It was said that the proceeds of that sale had been sent to the Bank’s solicitors, but that there had been a failure on the part of the solicitors and the Bank to make Mr Hay’s share of the net proceeds available to him.   This was the case despite satisfaction of the Bank’s claimed indebtedness under the mortgage which should have left Mr Hay with $817,000 out of the net proceeds.  Mr McNab said that as a result of the failure to account for the net proceeds of sale, Mr Hay and he were both completely broke. It is argued that that amounted to a restraint on their liberty.

[8]      In support of both grounds, Mr McNab raised arguments as to the failure of the Bank to obtain valid Overseas Investment Office approval for the sale of the property to an overseas purchaser, and perceived inadequacies in the legislative and other  provisions  which  led  to  the  amalgamation  of  the  Bank’s  constituent predecessors into the present entity.

[9]      I do not doubt that both Mr Hay and Mr McNab are deeply concerned about the apparent loss, through a mortgagee sale, of a substantial property.  There may well be questions, not answerable in this proceeding, about the disposition of the proceeds of the mortgagee sale.  Even taking into account the English Bill of Rights Act 1688 and the maxim in consimili casu consimile debet esse remedium1  I am unable   to   identify   a   causal   nexus   between   perceived   inadequacies   in   the establishment of the Bank, the civilised provision of tea and Easter buns, and the liberty of the applicants.

[10]     Whatever complaints Mr Hay and Mr McNab may have about the conduct of the mortgagee sale and the Bank’s alleged failure to distribute the proceeds, the present application does not provide this Court with jurisdiction to grant a remedy. Accordingly, I refuse the application for the issue of a Writ.

[11]     Costs are reserved and the respondent may make an application, if it wishes, by way of memorandum.

1 In similar cases the remedy should be similar.

[12]     During the hearing Mr McNab helpfully confirmed that communications sent to the physical address and email addresses shown on the application would reach both Mr Hay and him.  The Registry is directed to send a copy of this judgment to the applicants by mail and by email, and a copy of any memorandum seeking costs should be served in the same manner.

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Toogood J