Mather v O'Keeffe - [2012] NZHC 2240

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2010-470-0175 [2012] NZHC 2240

BETWEEN SUSANNE DOROTHY MATHER Plaintiff

ANDJOANNE MAREE O'KEEFFE AND JUDITH FAYE OXNAM
Defendants

Hearing: 31 August 2012

Counsel: P F Gorringe for Plaintiff
No appearance by, or on behalf of Defendants

Judgment: 31 August 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:
O’Sheas, PO Box 460, Hamilton
J K Hamilton, PO Box 201, Seventh Avenue, Tauranga
Counsel:
P F Gorringe, PO Box 7098, Hamilton

MATHER V O'KEEFFE HC TAU CIV 2010-470-0175 [31 August 2012]

The application

[1] Ms Mather applies for judgment on an admission of claim that was signed by

both defendants, Ms O’Keeffe and Ms Oxnam.

[2] The application was made on 28 August 2012. It was served that day on the address for service of the two defendants, showing that the application would be called in this Court at 2.15pm today. The solicitor acting for Ms O’Keeffe and Ms Oxnam has indicated by email to counsel for Ms Mather that there is no opposition to the application.

[3] No appearance has been entered. An affidavit of service has been filed. Notwithstanding that, I propose to give a short judgment today with reasons for my decision to grant the application, should any issues arise as to the correctness of the order later.

Introduction

[4] In June 2005, Ms O’Keeffe and Ms Oxnam were in need of money to refinance a business that they operated through their company, Ridge Country Retreat Ltd. They discussed this with Ms Mather. She did not possess funds from which a loan could be made. However, she offered her property at 10 Hanwood Way, Pyes Pa, Tauranga as security to a third party that may be prepared to advance funds on mortgage.

[5] Ms O’Keeffe and Ms Oxnam arranged a loan of $342,400. The money was obtained from TEA Custodians (Bluestone) Ltd (TEA). It was secured against Ms Mather’s property. Contemporaneously, Ms O’Keefe and Ms Oxnam entered into a written agreement with Ms Mather, in their capacity as trustees of the Ridge Horticulture Trust. They had borrowed from TEA in that capacity.

[6] Ms O’Keeffe and Ms Oxnam, in both their capacities as trustees and personally, promised Ms Mather to make all payments to TEA as they fell due and, in the event of default, to grant a first mortgage over a property owned by the Trust

at 300 Rocky Cutting Road, Tauranga. That agreement was signed on 25 August

2005, about 10 days after TEA had advanced moneys to Ms O’Keeffe and Ms

Oxnam.

[7] That mortgage has subsequently been rendered worthless through a mortgagee sale conducted by the first mortgagee. There were insufficient funds to meet the first mortgagee’s debt and no balance to pay to Ms Mather.

The proceeding

[8] This proceeding was commenced so that Ms Mather could recover from Ms

O’Keeffe and Ms Oxnam losses that she suffered when the loan fell into default.

[9] The TEA mortgage was registered over Ms Mather’s property…

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: [2012] NZHC 2240
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Susanne Dorothy Mather filed a claim against Joanne Maree O'Keeffe and Judith Faye Oxnam. The dispute centred around a financial agreement made in June 2005, where Mather offered her property as security for a loan to be obtained by O'Keeffe and Oxnam. The loan was secured against Mather's property, and the defendants promised to make payments to the lender as they fell due. However, the loan defaulted, leading to Mather paying the arrears to prevent a mortgagee sale of her property. Mather sought recovery of her losses from O'Keeffe and Oxnam.

The legal issues in the case involved the interpretation and application of the High Court Rules, specifically Rule 15.16, which deals with the admission of causes of action, and Rule 15.15, which allows for judgment on admissions of facts. The central question was whether the court could enter judgment based on an admission signed by the defendants as part of a settlement agreement. Initially, the court had doubts about its jurisdiction to grant judgment based on an admission filed by the plaintiff, but these concerns were later addressed through the application of Rule 15.15.

The court found that Rule 15.15 provided the necessary jurisdiction for the application for judgment. The admission of claim, which was signed by both defendants, acknowledged Mather's grounds of claim and admitted her defence to their counterclaim. Despite the loss of the original signed admission, the court accepted the photocopy as the best evidence available. Judgment was entered in favour of Mather for the sum of $386,281.98, along with costs and disbursements awarded on a 2B basis.

The court concluded that the admission signed by the defendants provided a valid basis for judgment. The original of the admission was lost, but the photocopy was accepted as sufficient evidence. The judgment was entered in favour of Mather against both defendants, jointly and severally, and also in relation to the counterclaim brought by the defendants. The hearing scheduled for 24 September 2012 was vacated, and the appearances were excused.

Orders