Hoole v Pickens - [2014] NZHC 620

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-460 [2014] NZHC 620

UNDER the Companies Act 1993

BETWEEN GARETH RUSSELL HOOLE and
KEVIN DAVID PITFIELD as receivers of CLAN NA GAEL HOLDINGS NZ LIMITED (In Receivership)
First Plaintiffs
ROTOITI TRUST SERVICES LIMITED Second Plaintiff

ANDJOSEPH WARREN PICKENS First Defendant

ELAINE VAN VEEN Second Defendant

J A B LAIR
Third Defendant

Hearing: 24 March 2014

Appearances: N F D Moffatt with L McNeely for Plaintiffs
J W Pickens First Defendant in person
E Van Veen Second Defendant in person
No appearance for Third Defendant

Reasons: 31 March 2014

REASONS FOR JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Bell Gully (Nicholas Moffatt/Liam McNeely) Auckland, for Plaintiffs

HOOLE and PITFIELD as receivers of CLAN NA GAEL HOLDINGS NZ LIMITED (In Receivership) v
PICKENS [2014] NZHC 620 [31 March 2014]

[1] I heard this summary judgment application on 24 March 2014. At the end of the hearing I gave judgment for the plaintiffs against the first and second defendants. I ordered the first and second defendants to vacate and deliver up possession of the property described in identifier 130488 by 14 April 2014. I awarded costs to the plaintiff. I give reasons for my decision.

[2] The land in identifier 130488 is Lot 2, Deposited Plan 331773 with an area of

59.7792 hectares more or less. It is at the Ohawini end of Oakura. Part of the land is used as a campground. The registered proprietor is Clan na Gael Holdings NZ Ltd.

[3] Mr Hoole and Mr Pitfield are receivers of Clan na Gael. The mortgagee who appointed them is Rotoiti Trust Services Ltd, formerly called Asteron Trust Services Ltd. Rotoiti said that it is entitled to possession of the property under its mortgage. The receivers said that they have the same right to possession. Mr Pickens, the first defendant, and Ms van Veen, the second defendant, both claimed rights to occupy the campground property. The matter to be decided was whether the rights they asserted can prevail against the claim of Rotoiti to have possession of the property.

[4] These questions need to be answered:

(a) Does Rotoiti have a right to possession of the property?

(b) Can Mr Pickens and Ms van Veen rely on a lease that Elizabeth Lambert granted to Mr Pickens and his late wife and a sub-lease by Mr Pickens and his late wife to Ms van Veen’s company?

(c) What is the effect of disclaimers by the Official Assignee under

Ms Lambert’s bankruptcy?

(d) If Mr Pickens and Ms van Veen establish any interest in the land, can they prevail over Rotoiti’s rights to possession?

(e) Does Mr Pickens have any argument that the property is Maori customary land?

Preliminary matters

[5] The plaintiffs also sought orders for another property to be vacated, a property in the name of Limerick Ltd at the intersection of Old Russell Road and Oakura Road. The third defendant, Mr Blair, was said to occupy that property. He has not…

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: [2014] NZHC 620
Decision Date: 31 March 2014

CaseChat Overview and Summary

In the case of Hoole v Pickens, the High Court of New Zealand Whangarei Registry heard a summary judgment application on 24 March 2014. The plaintiffs, Gareth Russell Hoole and Kevin David Pitfield as receivers of Clan na Gael Holdings NZ Limited, sought an order for the defendants, Joseph Warren Pickens and Elaine Van Veen, to vacate and deliver up possession of the property described in identifier 130488. The court had to decide on several legal issues, including whether Rotoiti had a right to possession of the property, if Mr. Pickens and Ms. Van Veen could rely on a lease granted by Elizabeth Lambert, the effect of disclaimers by the Official Assignee under Ms. Lambert's bankruptcy, and if Mr. Pickens and Ms. Van Veen could prevail over Rotoiti's rights to possession.

The court found that Rotoiti had a right to possession of the property as the registered mortgagee. The receivers had the same right to possession as the mortgagee under the terms of the mortgage. The court also found that Mr. Pickens and Ms. Van Veen could not rely on the lease granted by Ms. Lambert, as she never had the right to grant a lease over the property. The disclaimers by the Official Assignee under Ms. Lambert's bankruptcy terminated any interest the defendants might have had to possession of the property. Lastly, the court held that even if Mr. Pickens and Ms. Van Veen had an interest in the land, it would not prevail over Rotoiti's right to possession.

The court ordered Mr. Pickens and Ms. Van Veen to vacate and deliver up possession of the property by 14 April 2014 and ordered the defendants to pay the plaintiffs' costs on a 2B basis.

Orders