King v Heartland Bank Limited

[2025] NZHC 3263

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1879

[2025] NZHC 3263

BETWEEN

LUKE FABIAN KING and EMMA THERESA POLASCHEK
Plaintiffs

AND

HEARTLAND BANK LIMITED

Defendant

JM BRYANT LIMITED

Respondent

Hearing:

15 October 2025

Appearances:

Plaintiffs in person

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

Judgment:

30 October 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 30/10/2025 at pm

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

Solicitors/Counsel:

Anderson Lloyd, Christchurch

Wisheart Macnab & Partners, Blenheim Copy to Plaintiffs.

KING v HEARTLAND BANK LIMITED [2025] NZHC 3263 [30 October 2025]

Introduction

[1]    The plaintiffs, Mr King and Ms Polaschek, have filed proceedings against Heartland Bank Ltd (Heartland) alleging various forms of unlawful conduct by Heartland in the context of lending by the bank and the ultimate sale of their property by way of mortgagee sale.

[2]    The plaintiffs apply by way of interlocutory application for injunctive relief, seeking orders:

(a)restraining Heartland and its agents, servants, representatives and assignees, and the registered purchaser, JM Bryant Ltd, or associated parties, from entering, occupying, taking possession of, or physically accessing the property located in Murchison, Tasman (Property);1

(b)prohibiting Heartland and related parties from “transferring, registering, alienating, or altering” the legal or equitable title to the Property until final determination of the substantive claims;

(c)prohibiting Land Information New Zealand (LINZ) from processing or registering further title transfers or dealings in relation to the Property pending determination of the substantive claims by the Court;

(d)preserving the status quo regarding physical occupation, possession and title until final substantive Court determinations; and

(e)granting any further relief the Court deems just and equitable.

[3]    The  relief  is  sought  in  respect  of  both  Heartland  and  J M Bryant Ltd    (J M Bryant). J M Bryant purchased the Property at the mortgagee sale.

[4]Heartland and J M Bryant both oppose the orders sought by the plaintiffs.

1      In some documents filed in this proceeding, the address of the Property is recorded as Shenandoah.

Background

[5]    The substantive proceedings concern the mortgagee sale of the Property, which took place in early 2025.

[6]    The plaintiffs, trading as the L & E Partnership, purchased the Property with the assistance of lending from Heartland under a rural term facility agreement dated 1 April 2019. The loan to the L & E Partnership was refinanced under a further agreement signed in 2022.

[7]    In  January 2025,  the  Property  was  sold  by  Heartland   as  mortgagee  to   J M Bryant. Settlement took place on 14 February 2025. Heartland was repaid in full from the proceeds of the sale and the balance of the funds was paid to Ms Polaschek on 18 February 2025.

[8]J M Bryant is the current registered proprietor of the Property.

[9]    Heartland’s position is that the interim orders sought against it are unnecessary and inappropriate following the sale of the Property.

[10]   J M Bryant opposes the interim injunction application on the basis that, as the registered proprietor, it is entitled to exercise its rights, including its right to take possession of the land for its own purposes.

[11]   In a memorandum filed on 30 July 2025, the plaintiffs confirmed that they do not seek permanent possession or retention of the Property, and that they accept that upon resolution of the substantive claims against Heartland, J M Bryant will be entitled to retain title to the Property without further interference.

Legal principles

[12]The test for interim injunctive relief is well settled:2

2      NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12]. See also Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344, [2020] NZCCLR 29 at [23], citing Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 1 NZLR 129 (HC).

(a)First, the applicant must show there is a serious question to be tried.

(b)Next, the Court must consider the balance of convenience. This stage involves assessing the impact on the parties of granting, and refusing to grant, the orders sought.

(c)Finally, the Court must consider the overall justice of the position as a check.

[13]   In considering the balance of convenience, the Court will pay particular attention to the question of whether damages would be an adequate remedy. If damages would be an adequate remedy for the plaintiff, it will generally follow that the balance of convenience does not require any interim intervention by the Court.3

[14]The Court will not award injunctions that would be futile or pointless.4

[15]   The fact that innocent third parties might be detrimentally affected by the grant of an interim injunction is a factor that weighs against granting interim relief.5

Discussion

[16]   Mr King maintained in oral submissions that he and Ms Polaschek retain physical possession of the Property although they are currently not staying at the Property but are on holiday elsewhere.

[17]   Mr King said that he and Ms Polaschek were not trying to “undo the sale” and no longer want the Property. They simply want their position preserved until the conclusion of the substantive hearing. It emerged during the hearing that Mr King wishes to remove items from the Property but needs a financial settlement from Heartland in order to do that.

3      Cabco Group Ltd v Bartlett (2009) 6 NZELR 500 (HC) at [30], cited in Western Work Boats Ltd v Kelly [2016] NZHC 2577 at [20].

4      First Sovereign Trust Ltd v Infinity Foundation Ltd [2015] NZHC 2136 at [15].

5      See, for example, ABC Developmental Learning Centres (NZ) Ltd v Artemis Early Learning Ltd

HC Christchurch CIV-2010-409-1198, 25 June 2010 at [80].

[18]   Heartland submits that there is no serious question to be tried but says in any event, in circumstances where obtaining title is not appropriate relief, the plaintiffs’ remedy is in damages. Heartland submits that this is fatal to the application.

[19]   Heartland further submits that the balance of convenience favours Heartland and weighs against an injunction being granted. Heartland says the orders sought are pointless and futile because the Property was subject to a mortgagee sale which settled on 14 February 2025. On settlement, Heartland’s mortgage over the Property was discharged. Heartland submits that it no longer has any interest in the Property and cannot take any of the steps the plaintiffs seek to restrain in the application.

[20]   Accordingly, the orders sought against Heartland would offer no practical benefit to the plaintiffs and, if granted, would not have the effect of providing the plaintiffs with the protection that an interim injunction is intended to provide.

[21]   The plaintiffs seek to restrain J M Bryant and associated parties from entering, occupying, taking possession of, or physically accessing the Property, and from “transferring, registering, alienating or altering the legal or equitable title” to the Property, until final determination of the substantive claims against Heartland.

[22]   J M Bryant is an innocent third-party purchaser of the Property for value.      J M Bryant purchased the Property in good faith and is protected from liability arising from the sale by the provisions of s 184 of the Property Law Act 2007. Its interest would be detrimentally affected by the grant of the orders sought by the plaintiffs. This weighs against granting the orders sought.

[23]   The plaintiffs have confirmed that they acknowledge J M Bryant’s position as the current registered owner of the Property and that no wrongdoing or misconduct is alleged against J M Bryant. They do not seek permanent possession or retention of the Property. They accept that J M Bryant is entitled to retain title to the Property without interference following resolution of the substantive claims against Heartland.

[24]   Almost all of the plaintiffs’ submissions are directed against Heartland but the relief sought would mainly affect J M Bryant’s rights as the registered proprietor of the Property.

[25]   The injunctive relief is sought to maintain the status quo in respect of the ownership, occupation and possession of the Property until the substantive proceedings are at an end. The plaintiffs anticipate that those proceedings will result in the payment of damages which will allow them to remove items from the Property.

[26]   In circumstances where damages would be an adequate remedy, the balance of convenience weighs against the granting of interim relief. That is particularly the case where the interim relief would adversely affect the rights of a third party whose interest in the Property is protected by legislation.   It is entirely unreasonable to restrain      J M Bryant from exercising its property rights because of a dispute between Heartland and the plaintiffs where any eventual relief would be in the form of damages. There is no position to preserve.

[27]   The plaintiffs’ desire to fund the removal of items with damages they anticipate receiving is not sufficient grounds to interfere with J M Bryant’s rights to use the Property as it wishes.

[28]   Whether or not there is a serious question to be tried in respect of Heartland, the balance of convenience tells against the granting of the relief sought, as does the overall justice of the case. The Property is a rural property without any consented dwellings. Even if the plaintiffs succeed in their substantive application against Heartland, the remedy will be in damages. There is no good reason to interfere with  J M Bryant’s property rights by granting an injunction preventing J M Bryant from entering, occupying, taking possession of, physically accessing, or otherwise dealing with, the Property.

Result

[29]The plaintiffs’ application for injunctive relief is declined.

Costs

[30]The parties are directed to attempt to agree costs.

[31]If the parties are unable to agree on costs, I make the following directions:

(a)Any application for costs is to be made by memorandum and is to be filed and served within 10 working days of the date of this judgment.

(b)Any memorandum in response is to be filed and served within a further

10 working days.

(c)Memoranda as to costs are not to exceed five pages.

[32]A decision as to costs will then be made on the papers.

Wilkinson-Smith J