King v Heartland Bank Limited

[2025] NZHC 3491

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1879

[2025] NZHC 3491

BETWEEN

LUKE FABIAN KING and EMMA THERESA POLASCHEK
Plaintiffs

AND

HEARTLAND BANK LIMITED

Defendant

JM BRYANT LIMITED

Respondent

Hearing:

On the papers

Appearances:

Plaintiffs in person

C L Webber / V T Adams for Defendant DJ Clark for Respondent

Judgment:

18 November 2025

JUDGMENT OF WILKINSON-SMITH J

[Application for leave to appeal]

This judgment was delivered by me on 18/11/2025 at 12 pm

Pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar

Solicitors/Counsel:

Anderson Lloyd, Christchurch

Wisheart Macnab & Partners, Blenheim

KING v HEARTLAND BANK LIMITED [2025] NZHC 3491 [18 November 2025]

Copy to Plaintiffs.

[1]    On 30 October 2025 I issued a decision declining injunctive relief against the defendant,  Heartland Bank Ltd  (Heartland)  and  the  respondent,  J M Bryant Ltd  (J M Bryant).1 The plaintiffs have filed an application for leave to appeal.

[2]The plaintiffs seek leave on the following grounds:

(a)The High Court erred in treating the injunction as a discrete matter rather than a component of the continuing cause of action.

(b)The Court misapplied the “balance of convenience” and “overall justice” tests for granting interim injunctive relief by holding that damages would be a sufficient remedy if the substantive claim succeeds, when that claim concerns an allegedly unlawful loss of property and breach of fiduciary trust.

(c)The injunction sought was “protective and evidential” in nature, not proprietary, and its dismissal prejudices the integrity of the main hearing.

(d)By finding that “there is no position to preserve”, the Court failed to recognise continuing statutory and equitable rights arising from registered Crown encumbrances and environmental obligations.

[3]Section 56(3) of the Senior Courts Act 2016 provides that:

No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

[4]    The Court of Appeal has confirmed that the following principles apply in determining an application for leave to appeal:2

1      King v Heartland Bank Ltd [2025] NZHC 3263.

2      Greendrake v District Court Of New Zealand [2020] NZCA 122 at [6].

(a)A high threshold exists.

(b)The applicant must identify an arguable error of law or fact.

(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.

(d)The circumstances must warrant incurring further delay.

(e)The ultimate question is whether the interests of justice are served by granting leave.

[5]As Fitzgerald J said in Finewood Upholstery Ltd v Vaughan:3

The requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.

[6]    In addition to the application for leave to appeal the interlocutory decision declining injunctive relief, the plaintiffs seek an order directing that “all interlocutory records, evidence and rulings be joined and preserved within the High Court file (CIV- 2025-404-1879) as part of the substantive proceeding”. The relief sought is:

(a)a  grant  of  leave  to   appeal   the   interlocutory   judgment   dated  30 October 2025;

(b)a direction that “interlocutory records” be “digitally joined and preserved within CIV-2025-404-1879”;

(c)an acknowledgement of an alleged criminal breach under s 229 of the Crimes Act 1961 and referral to the appropriate authority for investigation;

3      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

(d)recognition that the interlocutory issues, the “Crown-registered environmental covenant”, and the “auction concealment” form part of the continuing substantive case; and

(e)reservation of costs pending determination of the appeal.

Discussion

[7]    The plaintiffs submit that an earlier minute of Fitzgerald J dated 30 July 2025 confirmed that the injunction application was timetabled within the main proceeding, “not as a stand-alone action”.4

[8]    In that minute, Fitzgerald J set out that in the substantive proceeding, the plaintiffs seek various declarations of breaches by Heartland of statutory and common law obligations, a refund of legal fees of $24,290.83, various general and special damages in an amount of at least $1,790,000, a penalty payment of $1,000,000, interest and costs. The minute records that an order is also sought that Heartland pay all proceeds from the alleged unlawful mortgagee sale, including associated fees and costs.

[9]Fitzgerald J also noted at [5]:

As noted above, the property was sold through mortgagee sale, with settlement taking place on 14 February 2025. Heartland’s position is therefore that the interim orders sought against it are unnecessary and inappropriate. The respondent takes a similar position, given it is already the registered proprietor of the property. I note that in a memorandum filed by Mr King this morning, he confirmed that the plaintiffs do not seek permanent possession or retention of the property, and that upon resolution of the substantive claims against Heartland, the plaintiffs accept that the respondent is entitled to retain the title without further interference.

[10]   The application for the interim injunction was heard as an interlocutory application in the substantive  proceedings.  The  plaintiffs’  argument  that  the  High Court erred in treating the injunction application as a discrete matter rather than a component of the continuing cause of action must result from a misunderstanding of the process. If the plaintiffs are suggesting that the interlocutory application should

4      King v Heartland Bank Ltd HC Auckland CIV-2025-404-1879, 30 July 2025 (Minute).

have been heard together with the substantive claim, that would appear to defeat the request for injunctive relief as it would delay consideration of the injunction until the substantive proceedings. Documents relating to both the substantive claim and the interlocutory application are already managed within a single Court file.

[11]   The plaintiffs say that the decision they seek to appeal misapplied the “balance of convenience” and “overall justice” tests by holding that damages would be a sufficient remedy in relation to the substantive claim when that claim concerns an allegedly unlawful loss of property and breach of fiduciary trust.

[12]   Mr King was very clear that there is no claim against J M Bryant, the current registered proprietor of the property that this proceeding is concerned with (Property), and there is no claim seeking return of the Property. In the circumstances, the only relief available is damages against Heartland.

[13]   Mr King is seeking a money judgment, and he intends to use that to remove items from the Property. He was also clear during the hearing that he wants the injunction to ensure that the Property remains in the same physical state until the end of the substantive proceeding so that he can use the anticipated damages to fund the removal of those items. As I said in the judgment, that would mean that J M Bryant, the registered proprietor, would be unable to exercise its property rights until the conclusion of these proceedings, which might be some time away.

[14]   The plaintiffs also raise the issue of what they say is a registered covenant executed under the Ministry for Primary Industries’ One Billion Trees Programme. The plaintiffs say that J M Bryant has declared an intention to clear and spray the land for forestry planting, and that this would breach the Crown covenant and expose both J M Bryant and Heartland to liability under environmental and contract law. As the plaintiffs have no  current  proprietary  rights  to  the  Property  and  do  not  dispute J M Bryant’s position as a bona fide purchaser for value and the current registered proprietor of the Property, that issue is irrelevant to the plaintiffs’ claim.

[15]   JM Bryant opposes the application for leave to appeal and disputes the existence of any encumbrance on the title to the Property.

[16]   As was apparent at the hearing of the application for the interim injunction and is also apparent from the application for leave to appeal, the plaintiffs’ issues are entirely with Heartland and not with J M Bryant.

[17]   The plaintiffs make an additional allegation of criminal conduct which is again irrelevant to the matters I must consider. It is not for the Court to instigate criminal proceedings or make any finding in respect of alleged criminal conduct in civil proceedings. This is not a matter which would justify referral of the matter to the Commissioner of Police or any other authority for investigation.

[18]   The injunctive relief sought against Heartland could not succeed. Heartland has no current proprietary interest in the Property. The effect of granting any injunction would have been to deny J M Bryant its rights as the current registered proprietor. The injunctive relief was essentially sought for a collateral reason, namely because the plaintiffs cannot afford to remove structures from the Property in a timely manner.

[19]   A high threshold exists for the granting of leave to appeal. In this case, the plaintiffs have not identified an arguable error of law or fact. There is no matter of general or public importance justifying a grant of leave to appeal, nor is there any alleged error of sufficient importance to the plaintiffs to outweigh the lack of general or precedential value. The interests of justice would not be served by granting leave.

Result

[20]The application for leave to appeal and other relief is declined.

Wilkinson-Smith J