Liberty Financial Limited v Lisati aka Risati HC Wellington CIV 2007 485 1365

[2007] NZHC 1971

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2007 485 1365

BETWEEN  LIBERTY FINANCIAL LIMITED Plaintiff

ANDLEUMA LISATI ALSO KNOWN AS LEUMA RISATI AND SINIUA LINA RISATI

Defendants

Hearing:         6 August 2007

Counsel:         J Haig for the Plaintiff

No appearance for the Defendants

Judgment:      6 August 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE GENDALL

[1]      Before me is an application for summary judgment by the plaintiff against the defendants.

[2]      The defendants have apparently defaulted in making payment to the plaintiff under a loan agreement and mortgage over a property at 53 Leicester Street, Canons Creek, Wellington for a loan advance originally of around $120,000.

[3]      A Property Law Act notice pursuant to s92 Property Law Act 1952 was served on the defendants on 20 November 2006 demanding payment of the sum of

$2,573.27 for instalments then outstanding under the mortgage. [4]   The notice expired unremedied on 26 December 2006.

[5]      As I understand the position the defendants remain living in the property.

LIBERTY FINANCIAL LIMITED V LEUMA LISATI ALSO KNOWN AS LEUMA RISATI AND SINIUA LINA RISATI HC WN CIV 2007 485 1365  6 August 2007

[6]      By this application the plaintiff therefore seeks orders first that the defendants vacate and provide vacant possession of the property, and secondly for judgment with respect to the outstanding mortgage debt, being $131,198.44 plus interest.

[7]      It is clear that pursuant to both s106 Land Transfer Act 1952 and the terms contained in the mortgage in the present case, possession of the mortgaged property may be obtained by the plaintiff as mortgagee.

[8]      It is also clear that the plaintiff is entitled to bring the present summary judgment application for possession of the mortgaged property pursuant to r135

High Court Rules.   There is authority for the imposition of orders for possession being granted in similar summary judgment applications – Southpac Custodians Ltd v Bank of New Zealand [1993] 1 NZLR 663 (CA).

[9]      Clause  17.2(c)  of  the  plaintiff’s  memorandum  of  mortgage  with  the defendants provides a right to the plaintiff to enter into possession of the mortgaged property upon default by the defendants.  I am satisfied on the material before the Court that default has occurred here.

[10]     A detailed affidavit of Beverley Erica Bridson has been filed by the plaintiff in support of the present summary judgment application.

[11]     These proceedings have been served upon the defendants on 12 July 2007.

[12]     No notice of opposition to the summary judgment application or statement of defence has been filed by the defendants.

[13]     And an affidavit of Kiri Patricia Goldsmith sworn 3 August 2007 has been filed indicating that the indebtedness of the defendants to the plaintiff at 2 August

2007 totalled $138,456.63 excluding legal costs.  It has been confirmed this remains outstanding.

[14]     The  plaintiff’s  present  application  for  vacant  possession  together  with judgment for the outstanding monies as I have already noted is unopposed.

[15]     From the affidavit evidence filed on behalf of the plaintiff in support of the application I am satisfied first that the defendants’ loan is in arrears, secondly a proper s92 Property Law Act notice was issued and served and remains unremedied, and thirdly that the plaintiff has sought access to the mortgaged property from the defendants to commence the mortgagee sale process but this has been refused by the defendants.  All of this evidence is unchallenged by the defendants.

[16]     That said, I find that the plaintiff has done sufficient here to show that the defendants have no defence to the claim advanced in its statement of claim, and that summary judgment is appropriate.

[17]     The plaintiff’s application therefore succeeds. Orders are now made that:

a)       The  defendants  forthwith  vacate  and  deliver  up  possession  of  the property  at  53   Leicester  Street,  Canons  Creek,   Wellington   as described in Certificate of Title WN12D 1263 (Wellington Registry).

b)       Judgment for $131,198.44 (being the total amount owing as per clause

11 of the statement of claim filed in this matter).

c)       Interest on the judgment sum at the rate of 15.5% per annum (being the default interest rate as per clauses 6.1 and 27.1 of the statement of claim filed in this proceeding).

d)The  defendants  are  to  pay  to  the  plaintiff  costs  calculated  on  a category  2B  basis  together  with  disbursements  totalling  in  all

$8,368.76 as set out in the schedule attached to the draft order submitted to this Court by counsel for the plaintiff with his memorandum on 6 August 2007.

‘Associate Judge D.I. Gendall’

Solicitors:

Lowndes Associates, Auckland for the Plaintiff