Morrison v First Mortgage Trust

[2025] NZHC 2972

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-691

[2025] NZHC 2972

BETWEEN

TAYLOR FORD MORRISON

Applicant

AND

FIRST MORTGAGE TRUST

Respondent

Hearing:	On the papers
Counsel:	Applicant in person
Judgment:	8 October 2025

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 7 October 2025, the applicant’s interlocutory application without notice was referred to me as duty Judge for consideration under r 7.42A of the High Court Rules 2016 (HCR). The application relates to the vacant possession of a self-contained flat which is part of a commercial property situated at 86 Abel Smith St, Wellington (the Property) in which the applicant resides. The applicant seeks orders to:

(a)stay the execution or enforcement of any eviction or possession action;

(b)allow the applicant to continue accessing and residing at the Property on the same basis as prior to enforcement, pending further order of the Court or determination by the Tenancy Tribunal; and

(c)restrain the respondent from denying access, changing locks, or otherwise interfering with occupation.

MORRISON v FIRST MORTGAGE TRUST [2025] NZHC 2972 [8 October 2025]

Background

[2]    In 2023, the respondent advanced a loan to Philip Moore & Co Ltd (PMCL). The loan was secured in various ways, including by way of a mortgage over the Property and guarantees. One of the guarantees was from the applicant’s mother, Marian Pearson who was, at that time, a director of PMCL. Ms Pearson has subsequently resigned as a director and has apparently been extradited to Australia to stand trial in respect of fraud proceedings. The applicant became a director of PMCL on 14 August 2025.

[3]    In January 2024, PMCL defaulted on the loan. The respondent served notices under the Property Law Act 2007 and the debt was repaid in part (following the sale of other property). In March 2025, the respondent applied for summary judgment against PMCL and the guarantors. The parties then consented to judgment conditional on a payment of $1.65 million being made by 31 July. When PMCL failed to make the payment by that date, the respondent sought entry of judgment on the basis of the consent already provided by PMCL to judgment being given. On multiple occasions, the applicant sought to adjourn the proceedings and defer judgment to enable him to move between premises.

[4]    On 19 August 2025, Associate Judge Skelton found that a conditional agreement had been entered into and that, the conditions having been satisfied, judgment must issue (the Consent Judgment).

[5]    On 25 September 2025, the applicant applied for urgent injunctive relief in this Court seeking an order to restrain the respondent from enforcing vacant possession of the Property.

[6]    In a judgment dated 29 September 2025, McQueen J declined the application on the basis that no order for an interim injunction could properly be made.1 She concluded that there was no serious question to be tried and that the balance of convenience and overall interests of justice likely favoured the respondent.

1      Morrison v First Mortgage Custodians Ltd and First Mortgage Managers Ltd [2025] NZHC 2844.

Relevant law

[7]    An issue estoppel operates when a court conclusively determines an issue or issues between parties, and the parties cannot reopen that/those issues.2 If the parties attempt to re-litigate those same issues, an abuse of process will occur.3

[8]The requirement to establish an issue estoppel are:4

(a)a final judgment;

(b)between the same parties and/or their privies;

(c)litigating in the same capacity; and

(d)on the same pleaded issue.

[9]In Shoreville Mandalay (in rec) v Bank of New Zealand, the Court noted that:5

Proceedings can be dismissed in whole or in part as an abuse of process of the Court where the cause of action pleaded could not succeed because of the existence of an issue estoppel with respect to one or more of the essential elements of the cause of action … or where the pleaded cause of action represents an attempt to litigate or re-litigate issues which ought properly to have been included in the previous proceedings…

[10]   The Supreme Court provided the following rationales as to the finality in litigation:6

The principle of finality in litigation gives rise to a rule of law that makes conclusive final determinations reached in the judicial process:

Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides.

2      Walker v Nelson District Court [2018] NZHC 1967, [2019] NZAR 1454 at [8].

3 At [8].

4      Westpac New Zealand Ltd v Anderson [2019] NZHC 979 at [27]; Savril Contractors Ltd v Bank of New Zealand [2005] 2 NZLR 475 (CA) at [42].

5      Shoreville Mandalay (in rec) v Bank of New Zealand HC Auckland CP478/93, 26 September 1997 at [11].

6      Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].

The rule reflects both the public interest in there being an end to litigation and the private interest of parties to court processes in not being subjected by their opponents to vexatious relitigation (footnotes omitted).

[11]   Rule 7.42A of the High Court Rules 2016 gives the power of the Court to strike out an interlocutory application if the application is plainly an abuse of the process of the Court.

Analysis

[12]   For the reasons that I will now set out, the application satisfies the elements of an issue estoppel. There was a final judgment by McQueen J on 29 September between the same parties litigating in the same capacity on same pleaded issue.

[13]   The application dated 7 October 2025 seeks interlocutory orders, which are similar in substance to what was sought under the application dated 25 September 2025. In both applications, the applicant sought to prevent the respondent from enforcing vacant possession of the Property.

[14]   Although the applicant claims that issues to do with his right to occupy the flat have not been dealt with, this is clearly incorrect. At [2] of her decision McQueen J said:

Mr Morrison sought an order restraining the respondents…from enforcing vacant possession at a self-contained flat in Wellington…

[15]At [9] she said:

The application was opposed by PMCL (belatedly), in reliance on an allegation there was a residential tenancy over the Property that meant the High Court had no jurisdiction to make the orders sought. At a hearing in relation to the application on 17 June 2025, PMCL resiled from that position and indicated the only issue moving forward would be the calculation of quantum.

[16]At [19] McQueen J refers to the position of counsel for the mortgagee and says:

Mr Conder confirms that this ground [relating to the claimed residential tenancy] was abandoned and PMCL accepted that it had no defence to the First Mortgage’s application for summary judgment. Mr Conder also submitted that the correct cause of action for Mr Morrison, as a director of PMCL at the time the Consent Judgment was obtained, would have been to raise this concern,

either as a matter of recalling the judgment or filing an appeal, and that neither of these steps were taken.”

[17]At [21] McQueen J says:

Mr Morrison then confirmed to me that he is not attempting to relitigate the Consent Judgment against PMCL. In essence, he seeks to have a few more days in the flat at the Property on compassionate grounds.”

[18]Finally, at [21], McQueen J says:

Mr Morrison is unable to articulate any legal foundation for a claim against First Mortgagee that would support an application for interim relief…. Accordingly, I conclude that there is no serious question to be tried and     Mr Morrison’s application for an interim injunction must fail at the first hurdle.”

[19]   I note that the application dated 7 October 2025 includes two additional orders to allow the applicant to continue residing at the Property pending determination by the Tenancy Tribunal and to restrain the respondent from interfering with occupation. However, as observed by McQueen J, those additional orders represent the applicant’s objective to delay the vacant possession of the Property he was residing in which is an issue that this Court has already conclusively determined.

[20]   The applicant has also referred to ss 60A and 62 of the Residential Tenancies Act 1986. Section 60A refers to a fixed-term tenancy becoming a periodic tenancy unless contrary notice is given. That section does not apply in light of the Consent Judgment. In recognising that the applicant was required to find temporary accommodation, McQueen J indicated that the applicant was obliged to leave in accordance with the conditional agreement.

[21]   Furthermore, s 62 refers to the ability of a landlord to dispose of any goods left by the tenant on the premises after the termination of a tenancy. This section is irrelevant to whether the Court ought to issue orders restraining the respondent from vacating the Property, as that provision deals with a tenancy after the fact.

[22]   In light of the matters noted above, it is clear that this application is an abuse of process and I strike the application out under r 7.42A of the High Court Rules.

Outcome

[23]The application is struck out.

Churchman J