Moore v Harry
[2017] NZHC 1587
•10 July 2017
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 personJudgment:
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 be defeated: MacLean v Stewart (1997) 11
PRNZ 66 (CA)[Green]. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for
example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently
improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR
373 (PC)[Green] , at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic
approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987)
1 PRNZ 84 (CA).
Entitlement to possession
[8] The position is that the registered proprietor of real estate who is in the position of the plaintiff is entitled to possession of it.
[9] The position is summarised in the text book, Hinde McMorland & Sim, Land
Law in New Zealand at paragraph 3.008:
3.008 Rights conferred by ownership of an estate in fee simple
The most important rights enjoyed by a tenant in fee simple are possession, use and enjoyment, and alienation.
(a) Possession
A tenant in fee simple is entitled to seisin of the land for the duration of his or her estate. Seisin signified a certain kind of possession and
1 Krukziener v Hanover Finance Ltd, [2010] NZCA 307; at [26].
eventually acquired a highly technical meaning. For present purposes, however, it is unnecessary to distinghish between seisen and possession. A tenant in fee simple in possession is entitled to exclude all other persons from the land and, if wrongly dispossessed, can recover possession by peaceable re-entry or by taking proceedings for recovery of possession.
[8] The position is, further, as it was stated in Frazer v Walker,2 that it is the registration and not its antecedents which vests and divests title. Whatever might have occurred before, and leading up to, the transfer of the defendant’s title to the plaintiff, and in particular dealings between the defendant and the bank, they cannot be invoked in order to defeat the plaintiff’s title to the property.
[9] Finally, the position here is also regulated by s 105 Land Transfer Act 1952 which provides:
105 Transfer by mortgagee
Upon the registration of any transfer executed by a mortgagee for the purpose of exercising a power of sale over any land, the estate or interest of the mortgagor therein expressed to be transferred shall pass to and vest in the purchaser, freed and discharged from all liability on account of the mortgage, or of any estate or interest except an estate or interest created by any instrument which has priority over the mortgage or which by reason of the consent of the mortgagee is binding on him.
Application of principles to proceeding before Court
[10] The application of the principles described in the previous paragraphs now needs to be considered.
[11] The plaintiff in this case has the benefit of a registration of a transfer executed by the mortgagee for the purpose of exercising a power of sale over the land. It is therefore the type of situation to which s 105 of the Land Transfer Act
1952 applies. Its effect, in the circumstances of this case, is that Mr Moore the plaintiff acquires the property free of any rights or interests that might arise from the
relationship that previously existed between the defendant and his mortgagee.
2 Frazer v Walker [1967] NZLR (P.C.) 1069, 1075.
[12] There is no requirement that a purchaser at mortgagee sale have a contract with the mortgagor.
[13] The fact that Mr Moore might have complaints against SBS does not therefore affect the plaintiff.
[14] As I have mentioned, the defendant also considered that the Court ought to take account of what, he claimed, were questionable aspects of the source from which the plaintiff obtained the purchase price.
[15] The plaintiff who represented himself, having, albeit, had some assistance from his son as McKenzie friend, did not put forward any contentions as to why or how the Court is required to embark upon an enquiry into how the plaintiff came by the funds which he used for the purchase of the property.
[16] The circumstances in which the plaintiff satisfied the requirements of the contract for sale and purchase which he no doubt entered into with the mortgagee is of no relevance at this stage, if it ever was. The plaintiff obtained from the mortgagee a transfer of the mortgagor’s interest in the land, namely the fee simple. His claim for possession based upon his title cannot be defeated by any fraud or error which affected the circumstances in which SBS as the mortgagee transferred the interests of the mortgagor in the property to the plaintiff: S 183 Land Transfer Act.
[17] The only basis upon which it would appear that the plaintiff could be defeated as if he behaved fraudulently toward the defendant and there is no evidence that that occurred.
[18] Therefore, neither of the two grounds of opposition which the defendant put forward can avail him in the present proceeding. Whatever dealings the defendant may have had with SBS they have not in any way altered the state of the title which reflects the proprietorship of the plaintiff.
[19] The plaintiff as the proprietor in fee simple of the property is entitled to assert his rights to possession. He could only be defeated by an opposing party taking
steps to have them removed from the title as the registered proprietor of the estate in fee simple. It is not doubted that in the present case such steps have not been taken.
Conclusion
[20] It follows that the defendant has no arguable defence which he could put forward in answer to the application for summary judgment.
[21] For those reasons there will be judgment for the plaintiff in terms of the application for summary judgment. Because the plaintiff has been a successful party, the defendant is to pay costs on a 2B basis together with disbursements as fixed by the Registrar.
[22] The only two remaining issues are the terms of any order that are made and costs.
[23] The plaintiff is living in what is described as circumstances of “respite care”. He is apparently only living where he is living because he cannot get access to the house which he has purchased.
[24] It may take the defendant a little time to remove his effects from the property. When questioned about this the defendant did not tell me anything that enabled me to make a concrete assessment of how long it would actually take to vacate the property.
[25] In my judgment the appropriate balance to be struck in this case will be reflected by an order that requires the defendant to vacate the property not later than
31 July 2017. There will therefore be an order for possession in favour of the plaintiff generally in terms of paragraph “A” of the claim to relief in the statement of claim but modified to the extent that the order for possession is to take effect from 1
August 2017.
[26] As to costs, Mr Bush clearly accepted that the present case was not a particularly complicated one. He proposed that costs be ordered on a 1A or 2A basis. I consider that the latter cost category will be fair to both parties and there
will be an order that the defendant is to pay costs on a 2A basis together with disbursements as fixed by the registrar.
[27] Neither of these matters provide a basis for an arguable defence to the
plaintiff’s claim for possession
J.P. Doogue
Associate Judge