Mortyne v Moana Supertee Pty Limited - [2018] NZHC 2671

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2017-488-113 [2018] NZHC 2671

BETWEEN
WARWICK RICHARD MORTYNE AND

TRACY CHARLOTTE MAREE RUKE Plaintiffs

AND

MOANA SUPERTEE PTY LIMITED Defendant

Hearing: 11 October 2018

Appearances:

S B Punshon for Plaintiffs
No appearances for Defendant

Judgment:

16 October 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 16 October 2018 at 2.00pm
Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Patterson Law Ltd, Kaitaia

MORTYNE AND ANOR v MOANA SUPERTEE PTY LIMITED [2018] NZHC 2671 [16 October 2018]

[1] The plaintiffs, Warwick Mortyne and Tracey Ruke, have applied for orders:

(a)declaring that a property in Ahipara – of which the registered owner is the defendant company which has been deregistered in Australia - is held by the company on trust for the plaintiffs; and

(b) vesting the property in the plaintiffs.

[2] The central issue is whether the Court has the power to make such orders. There is also an ancillary question of whether the proceeding is validly issued since the defendant, Moana Supertee Pty Ltd, no longer exists. However, for reasons that will become apparent, it is not necessary to deal with that question.

[3] The application was filed on 13 October 2017 with an affidavit in support sworn by Mr Mortyne on 2 October 2017. I heard the application on 11 October 2018. During the hearing, I was provided with further information by Mr Mortyne and
Ms Ruke to supplement that contained in Mr Mortyne’s affidavit.

Relevant factual background

[4] Mr Mortyne, who is an Australian citizen but is resident in New Zealand, and

Ms Ruke, who is a New Zealand citizen, were once married and lived in Queensland, Australia. They established a company, Moana Supertee Pty Ltd, in Queensland for the purposes of managing their property interests. Mr Mortyne and Ms Ruke were the only two directors of the company. They were also the sole shareholders, each holding
50 per cent of the shares.

[5] In March 2011, while still resident in Australia, Mr Mortyne and Ms Ruke decided to buy the property at 3 Poseidon Way, Ahipara in New Zealand. While they used their own funds to meet the purchase price, the purchase was settled in the name of their company, Moana Supertee. Mr Mortyne and Ms Ruke also used their own funds to buy and move a relocatable house onto the property and to meet all expenses associated with the property.

[6] Subsequently, Mr Mortyne and Ms Ruke moved to New Zealand and lived in the Poseidon Way property. They did not pay rent to Moana Supertee and paid personally for the outgoings and maintenance and repair of the property.

[7] In April 2013, Mr Mortyne and Ms Ruke separated. They both continue to reside in New Zealand.

[8] On 9 April 2016, the Australian Securities and Investment Commission (ASIC) deregistered Moana Supertee apparently having reached the view that…

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: [2018] NZHC 2671
Decision Date: 16 October 2018

CaseChat Overview and Summary

Warwick Mortyne and Tracey Ruke, former spouses, sought orders declaring that a property in Ahipara, held by their deregistered company, Moana Supertee Pty Ltd, was held on trust for them and that the property be vested in them. The key issue was whether the Court had the jurisdiction to make such orders, particularly given the company's deregistration in Australia. The court found that upon deregistration, the property vested in either the Commonwealth of Australia or the Australian Securities and Investment Commission (ASIC), depending on whether it was held on trust. The court concluded that ASIC's non-opposition to the orders, subject to certain conditions, did not amount to a waiver of title. The plaintiffs lacked a beneficial interest in the property as directors of the company; such interest lies with the shareholders. The court dismissed the application but reserved leave for the plaintiffs to apply if they could not secure a resolution through ASIC. The court suggested that ASIC might consider distributing the property to the plaintiffs, given their status as former directors, shareholders, and funders of the company, and the absence of liabilities.

Orders