Moore v Harry - [2017] NZHC 1587

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-437 [2017] NZHC 1587

BETWEEN
HERBERT MOORE

Plaintiff

AND

D HARRY Defendant

Hearing: 5 July 2017

Appearances:

Mr Bush for plaintiff
Mr Harry - defendant in person

Judgment:

10 July 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
10.07.17 at 3.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MOORE v HARRY [2017] NZHC 1587 [10 July 2017]

[1] The plaintiff has purchased a property at 5 Albert Street, Mackaytown. The defendant was the owner of the property. The property was subject to a mortgagee sale carried out by the Southland Building Society. The plaintiff submitted an offer to the mortgagee to purchase the property which was accepted by Southland Building Society (SBS). The purchase transaction by the plaintiff was settled on 18
November 2016. The defendant however would not leave the property and the defendant served him with a notice to vacate the property on 12 December 2016. He remains in possession.

[2] The plaintiff has brought summary judgement proceedings to recover possession.

[3] The defendant resists the application for summary judgment and opposes any judgment for possession of the property being issued.

[4] In the Notice of Opposition, Mr Harry put forward two matters:

a) That he did not have a contract with the plaintiff;

b) He had “unfinished business” with his mortgagee, SBS;

[5] As the case developed, though, Mr Harry appeared to put forward two defences:

a) He was in dispute with the mortgagee, SBS; and

b)The funds which the plaintiff had used to purchase the property at mortgagee sale came from an illicit source. It was his contention that this matter needed to be further investigated by the court and while that was being undertaken, possession of the property should not be granted to the plaintiff.

[6] Mr Bush for the plaintiff contended that matters as between Mr Harry and the mortgagee were entirely irrelevant to his clients claim for possession. He similarly

contended that questions about the origin of funds were entirely irrelevant. Mr Bush also said that it was not, in any event, accepted that there was anything untoward about how the plaintiff had financed his acquisition of the property.

Summary judgment principles

[7] I adopt the following summary of principles stated in the Court of Appeal judgment in Krukziener v Hanover Finance Ltd:1

1. Summary judgment principles

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR
1; (1986) 1 PRNZ 183 (CA)[Yellow] , at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where
its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to…

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.

Continue reading Moore v Harry

Details

AGLC: Moore v Harry [2017] NZHC 1587
Case: [2017] NZHC 1587
Decision Date: 10 July 2017

CaseChat Overview and Summary

Herbert Moore purchased a property at 5 Albert Street, Mackaytown, from the Southland Building Society (SBS) after the property was subject to a mortgagee sale. The property's former owner, D Harry, refused to vacate the premises and instead brought the matter to court. The plaintiff filed for summary judgment to recover possession of the property, and the defendant resisted the application, claiming that there was no contract between him and the plaintiff and that he had unfinished business with SBS. The plaintiff argued that these issues were irrelevant to his claim for possession.

The court considered the principles of summary judgment, which state that if the defendant has no defence to the claim, the court can grant summary judgment. The court found that the plaintiff's purchase of the property was valid, and the defendant's claims regarding the lack of a contract and unfinished business with SBS did not affect the plaintiff's claim for possession. The court also found that the plaintiff's source of funds was irrelevant and that the plaintiff's title was not affected by any fraud or error that might have occurred in the sale.

The court concluded that the defendant had no arguable defence to the plaintiff's claim for possession. The court ordered that the defendant vacate the property by 1 August 2017 and that the defendant pay costs on a 2A basis together with disbursements as fixed by the Registrar.

Orders