Nags Head Horse Hotel Ltd v Mawhinney
[2017] NZHC 401
•10 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-000258 [2017] NZHC 401
BETWEEN NAGS HEAD HORSE HOTEL LIMITED
Applicant
AND
PETER WILLIAM MAWHINNEY AS TRUSTEE OF WAITAKERE FOREST LAND TRUST
First Respondent
FOREST TRUSTEE LIMITED (IN LIQUIDATION)
Second Respondent
SIXTY-SIX AUCKLAND LIMITED Third Respondent
[Continued over]
Hearing: 1 March 2017 Appearances:
Alexandra Low and Telise Kelly for the Applicant/Defendant
Respondents/Plaintiffs in PersonJudgment:
10 March 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 10 March 2017 at 10:30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
NAGS HEAD HORSE HOTEL LIMITED v MAWHINNEY & ORS [2017] NZHC 401 [10 March 2017]
CIV-2017-404-000280 BETWEEN
PETER WILLIAM MAWHINNEY AS TRUSTEE OF BOULDER TRUST First Plaintiff
PETER WILLIAM MAWHINNEY AS TRUSTEE OF THE WAITAKERE FOREST LAND TRUST
Second Plaintiff
PETER WILLIAM MAWHINNEY AS TRUSTEE OF FOREST TRUST
Third Plaintiff
AND
NAGS HEAD HORSE HOTEL LIMITED
Defendant
Introduction
[1] This judgment deals with two separate but related proceedings.
[2] In the first proceedings – “the 258 proceedings” – Nags Head Horse Hotel Limited (“Nags Head”) applies to remove a caveat lodged by the respondent, Mr Mawhinney, in respect of a property situated at 131 – 149 Anzac Valley Road, Waitakere (“the property”). Nags Head, as holder of a registered mortgage, is attempting to conduct a forced sale of the property. It has found a purchaser and the Court has approved the sale.
[3] Mr Mawhinney opposes the application and contends that the caveat protects an equitable interest in the land, namely an agreement to lease executed in December
2009.
[4] In the second proceedings – “the 280 proceedings” – Mr Mawhinney applies to this Court in his capacity as trustee for three plaintiff companies seeking orders restraining Nags Head from exercising its rights as mortgagee. He claims that Nags Head has breached its duty of care under s 176 of the Property Law Act 2007 (“the PLA”) to obtain the best price reasonably obtainable at the time of sale. He also claims that Nags Head has misrepresented the nature of the property to potential purchasers.
[5] In response, Nags Head asks the Court to strike out the plaintiffs’ application
for an interim injunction and statement of claim on the grounds of abuse of process.
Background and procedural history
[6] On 24 August 2010, a term loan agreement between Nags Head and Richard Vesey (then the registered proprietor of the property) was executed by Mr Vesey’s attorney. The principal sum borrowed was $420,000. The agreement provided for a registered first charge mortgage as security for all Mr Vesey’s obligations under the mortgage. The mortgage was registered three days later on 27 August 2010.
[7] It was a post-settlement condition of the loan agreement that Mr Vesey could transfer the land to an entity associated with Mr Mawhinney, Forest Trustee Limited. That transfer was ultimately effected on 21 October 2011.
[8] The loan became repayable in 2013. It was not repaid. On 4 October 2013
Nags Head issued notices under s 119 of the PLA.
[9] The mortgagor remained in default and the applicant moved to exercise its power of sale. In his judgment of 29 July 2016 Brewer J authorised Nags Head to conduct the sale of the whole or any part of the property.1 Following the close of tenders Nags Head was directed to provide to this Court, for approval, the tender it intended to accept and a full report on the sale process.
[10] On 17 February 2017 Palmer J approved Nag Head’s request to accept an unconditional offer of $1.65 million.2 He also approved a back-up request to accept another offer of $1.655 million if the unconditional offer did not proceed for any reason. His Honour allowed Mr Mawhinney three working days from the date of his Minute to pay off the mortgage in full. No payment was made.
[11] On 22 February 2017 Palmer J issued a second Minute inviting all parties to file submissions and evidence as to the redemption amount. Palmer J also extended the time for redemption until 5:00 pm on 23 February 2017.3 That deadline was ultimately extended until 12:00 pm on 24 February 2017.
[12] On 23 February, Mr Mawhinney filed a memorandum in which he argued that rates, real estate commission and legal fees should not be secured by the mortgage. The next day, on 24 February 2017, Palmer J issued a third Minute determining that the real estate commission, land rates and legal fees were
reasonable and secured by the mortgage.4
1 Nags Head Horse Hotel Ltd v Mawhinney [2016] NZHC 1740.
2 Nags Head Horse Hotel Ltd v Mawhinney HC Auckland CIV-2016-404-653, 17 February 2017 (Minute (No 1) of Palmer J).
3 Nags Head Horse Hotel Ltd v Mawhinney HC Auckland CIV-2016-404-653, 22 February 2017 (Minute (No 2) of Palmer J).
4 Nags Head Horse Hotel Ltd v Mawhinney HC Auckland CIV-2016-404-653, 24 February 2017 (Minute (No 3) of Palmer J).
[13] The time extensions granted as an indulgence to Mr Mawhinney have now expired. The mortgage has not been redeemed.
The caveat
[14] As part of his Minute dated 17 February 2017, Palmer J directed Nags Head to file and serve its application for the removal of caveat instrument No. X9456724.1 from the property’s certificate of title. The caveat sought to be removed was registered on 12 July 2013, although the actual caveat document is dated 25 October
2011.
[15] The caveat purports to secure an equitable interest arising from an agreement to lease dated 15 December 2009. That agreement was executed between Mr Vesey and a company called North Kaipara Nominees Ltd as trustee of the Anzac Valley Forestry Trust. Mr Mawhinney was the sole director of the company and was also a trustee of the Anzac Valley Forestry Trust. The terms of the agreed lease included an option to purchase the land for the sum of $10.00 with the option remaining open to be exercised until 5.00 pm on 31 December 3009. The consideration given for the option is recorded as being $1.00.
[16] The caveat document describes the alleged interest as follows:
“An equitable estate and interest arising from an agreement to lease to the caveator dated 15 December 2009 known to, consented to and binding on the lessor and registered proprietor Forest Trustee Limited.”
[17] As Ms Low, for Nags Head, observes, Forest Trustee Limited was not the registered proprietor until 21 October 2011 and, as such, was not the registered proprietor of the property when the alleged agreement to lease was signed on
15 December 2009 or when the applicant registered its mortgage on 27 December
2010.
The application to remove the caveat
Relevant principles
[18] Under s 137(1)(a) of the Land Transfer Act 1952 (“the LTA”) a person may lodge a caveat in respect of any land if the person claims to be entitled to, or to be beneficially interested in, the land by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise. The registered proprietor against whose title to deal with land the caveat has been lodged, which includes mortgagees for the purposes of the LTA, can apply to the Court under s 143 of the LTA for an order to remove the caveat.
[19] An order for the removal of the caveat will only be made if it is clear that there was either no valid ground for lodging it in the first place or that such ground as then existed has now ceased to exist.5 The onus lies on the caveator to establish an interest in the land sufficient to support the caveat. The caveator must advance a reasonably arguable case to support the claimed interest.6 Even if the caveator establishes an arguable case for the interest in the land claimed, the Court retains the discretion to make an order removing the caveat. However, the discretion is to be exercised cautiously, as when the caveat could serve no useful purpose or alternative safeguards are available.7
Does Mr Mawhinney have a caveatable interest?
[20] Nags Head has indefeasibility of title by virtue of its registered first mortgage.8 The mortgage will thus defeat the interests of any prior unregistered agreement to lease unless the mortgagee had knowledge of the agreement in question. As the agreement to lease relied on by Mr Mawhinney is unregistered, the caveat should be removed unless Mr Mawhinney can put forward a reasonably
arguable case that Nags Head had knowledge of the agreement.
5 Sims v Lowe [1988] 1 NZLR 656.
6 Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA).
7 S and S Ltd v XYZ Ltd [2016] NZHC 26.
8 See Mawhinney v Nags Head Horse Hotel Limited [2013] NZHC 1530 at [33]-[34].
[21] The director of Nags Head, Ms Lowndes, categorically denies that she had knowledge of this agreement. She says the first time she had any knowledge of the purported agreement to lease was when Mr Mawhinney lodged the caveat in 2013. Ms Lowndes deposes that in advancing the loan to Mr Vesey she relied on a solicitors’ certificate and a trustee’s certificate which confirmed that there were no unregistered charges or interests likely to prejudice Nags Head in respect of the property. She says that if the position had been otherwise Nags Head would never have advanced the loan, as is reflected in the terms of the loan agreement which require its prior consent before such interests can be created.
[22] Mr Mawhinney, on the other hand, claims he informed Ms Lowndes of the agreement to lease prior to the applicant making the loan secured by the mortgage. He says that, in the course of negotiating a loan from the applicant, he informed Ms Lowndes of all the charges and encumbrances against the property including the agreement to lease. He deposes that the agreement to lease was a part of the arrangements for him and Ms Lowndes to have control of the land for the purposes of a subdivision project.
[23] Mr Mawhinney also refers to what he describes as similar arrangements between himself and Nags Head in respect of neighbouring land. He points out that a forestry right and encumbrance were registered over the neighbouring land on
29 September 2010 at the same time as the land was transferred to Ms Lowndes and the trustees of a trust she was associated with. He submits that this is further evidence of the arrangements for him and Ms Lowndes to have control of the land for the purposes of a subdivision project.
[24] Finally, Mr Mawhinney tenders an explanation as to why the certificates did not refer to the agreement to lease. He explains that the documents executed in support of the loan were executed under urgency, on the evening before the property was to be put up for auction as part of a mortgagee sale. Mr Mawhinney deposes that the loan documents were executed by an attorney for Mr Vesey, Mr Mawhinney’s brother, who did not have the same knowledge as Mr Mawhinney. While Mr Mawhinney attended the solicitors’ offices for this purpose, he was asked
to leave the room in which the loan documents were processed and could not comment on them. He says he was not asked to check the documents.
[25] As the foregoing makes clear, the rival contentions of the parties arise from a fundamental disagreement as to the facts. It is well established that an application to remove a caveat does not provide an appropriate forum for the determination of factual disputes. Equally, however, the Court should not be deterred from granting such an application where it is satisfied that a factual claim made in opposition to the application has been made without proper basis. In this regard, I respectfully refer to
and adopt the following observation of Bell AJ in S and S Ltd v XYZ Ltd:9
“Caveat applications are summary and therefore not suited for deciding disputed questions of fact. On the other hand, the Court is not required to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.”
[26] In my view, Mr Mawhinney’s contention that Ms Lowndes was fully aware of the agreement to lease purportedly entered into on 15 December 2009 is inconsistent with undisputed contemporary documents and is inherently improbable.
[27] The documentation coeval with when Mr Mawhinney claims he informed Ms Lowndes of the agreement to lease is entirely inconsistent with that claim. Rather, the documentation paints a compelling picture of the applicant as a prudent mortgagee, eager to ensure its mortgage was immune to any interests in the land which could prejudice its rights as mortgagee. The solicitors’ certificate referred to by Ms Lowndes confirmed that after “due enquiry” and to the best of the solicitors’ knowledge and belief there were “no unregistered charges or interests likely to prejudice” Nags Head. To similar effect, the trustee’s certificate, prepared by Mr Vesey, stated that there were no existing charges in relation to the property other than those disclosed to and permitted by Nags Head. As a matter of commonsense and logic I accept that Ms Lowndes relied on these representations when advancing
the loan on behalf of Nags Head.
9 S and S Ltd v XYZ Ltd, above n 7, at [5].
[28] But that is not all. The loan agreement itself is also relevant. The following clauses are demonstrative of Nags Head’s intention to protect itself against any interests in the land that could be prejudicial to its mortgage:
“20.Subject to clause 21, [the mortgagor] shall not register or allow to be registered on the Anzac Valley Property any forestry right, land covenant or other interest in the Anzac Valley Property without first obtaining [the mortgagee’s] consent to do so, such consent to be granted or withheld in [the mortgagee’s] sole discretion.
21.[The mortgagee] will consent to [the mortgagor] granting a lease, whether registered or unregistered, in respect of all or any part of the Anzac Valley Property on the following conditions:
21.1[the mortgagor] will provide [the mortgagee] with the form of the lease prior to entering into the lease, which must be satisfactory to [the mortgagee] in [its] sole discretion; and
21.2as security for that guarantee, grant a mortgage to us in respect of that lessee’s interest in the Anzac Valley Property pursuant to the lease,
on terms satisfactory to [the mortgagee] in [its] sole discretion.
…
25.[The mortgagee] acknowledges that the Anzac Valley Property is to be transferred by you to Forest Trustee Limited and agree that we consent to such transfer on the condition that Forest Trustee Limited undertakes and covenants to be bound by the same terms as those contained this agreement and to accept an assignment of the mortgage to be registered over the Anzac Valley Property in accordance with this agreement provided that, in such circumstances:
25.1[The mortgagor] must provide a guarantee of the obligations of Forest Trustee Limited to [the mortgagee], on terms satisfactory to [it] in [its] sole discretion; and
25.2Forest Trustee Limited must agree to be bound by the deed of priority in the form annexed to this agreement as annexure B and to execute any further deed of priority that we deem necessary in order to secure such obligations.”
[29] A central theme emerges. Ms Lowndes, as director of Nags Head, took active steps to ensure the indefeasibility of its mortgage could not be prejudiced by other interests in the land. I find it highly improbable that the same director would consent to an agreement to lease providing the lessor with an option to purchase the property for $10.00. Further, if Nags Head did consent to such a lease I would expect there to
be documentation recording the giving of that consent given Ms Lowndes’s reliance
on the solicitors’ and trustee’s certificates.
[30] Moreover, I do not accept that the registration of encumbrances over neighbouring land in September 2010 assists Mr Mawhinney’s claim that Ms Lowndes knew of the agreement to lease. Rather, the fact that Ms Lowndes consented to the encumbrances on the contiguous land can be contrasted with the term loan agreement which prohibits the mortgagor from registering any forestry right or interest in the land without the prior consent of the applicant. It would make little sense for Ms Lowndes to take such contrasting positions if the agreement to lease formed part of the overall arrangements described by Mr Mawhinney. Seen in this light, the registration of the encumbrances on the neighbouring land actually undermines Mr Mawhinney’s claim that Ms Lowndes was aware of the agreement to lease.
[31] For these reasons, I conclude that Mr Mawhinney does not have the caveatable interest he claims.
Abuse of process
[32] Even if I had found that Mr Mawhinney did have an arguable case in support of his caveat or that the factual dispute could not be properly resolved in the context of the present application, I would nevertheless have exercised the discretion to remove the caveat on the grounds of abuse of process. My reasons, in truncated form, follow.
[33] Mr Mawhinney could have raised this issue before Brewer J when he opposed the applicant’s application to the Court for assistance in exercising its power of sale. He did not. A judgment of Christensen AJ delivered on 24 June 2013 is instructive in this regard.10 In those proceedings, his Honour dealt with an application by Mr Mawhinney to sustain three caveats. Nags Head opposed the
application and asked that the caveats lapse so it could exercise its power of sale.
10 Mawhinney v Nags Head Horse Hotel Limited, above n 8.
[34] Christiansen AJ found that the caveats had been lodged without reasonable cause. His Honour also considered there had been an abuse of process because the arguments raised in support of the caveats could have been raised in earlier proceedings concerning the priority of Nags Head’s mortgage. Relevantly, his Honour observed:
“[35] The interests claimed by Mr Mawhinney relate very much to his descriptions of transactions which have occurred affecting that mortgage which was registered before Nags Head’s was registered but which, by the Court’s judgment of 6 December 2012, was held to have relinquished any claims of priority to Nags Head’s mortgage. In relation to those issues that were the subject of the judgment the Court heard a variety of claims by Mr Mawhinney about why priority should not be conceded to the Nags Head mortgage. Yet by the present application it is requested that three caveats, two of which were filed after the judgment of 6 December 2012, should continue to undermine Nags Head’s mortgagee rights.
…
[56] Mr Mawhinney has lodged the caveats without reasonable cause. For reasons identified the Court considers there has been an abuse of process in the methods he has engaged for his purpose to resist any threat to his development plans. Abuse occurs also because the arguments raised in their cause could have been raised in the priority interest proceedings.
[57] Whilst balance of convenient considerations should only be adopted with caution, in the present case and even if a caveatable interest claim was considered arguable it is quite clear that in light of Mr Mawhinney’s conduct to date that the Court should exercise its discretion to remove the caveats.”
[35] I consider that the alleged interest protected by the caveat should have been raised in the proceedings before Brewer J. Inexplicably it was not. In those proceedings, Nags Head sought the Court’s assistance with the sale process. That was the appropriate time to reveal to the Court the agreement to lease containing the option to purchase because if Nags Head did consent to an agreement to lease then it would bind a purchaser by virtue of s 105 of the LTA:
“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.”
[Emphasis added]
[36] By failing to disclose the agreement to lease until after the Court had assisted with the sale process, Mr Mawhinney has severely undermined the assistance Nags Head derived through the judgment of Brewer J making directions as to the sale process and the Minute of Palmer J approving a proposed sale to an identified purchaser. That is because unless the caveat is removed the proposed purchaser could rightly and understandably elect to cancel the agreement on account of the agreement to lease which has only now been produced to either the Court or counsel for Nags Head.
[37] For this reason, I do not accept Mr Mawhinney’s explanation that the issue only became relevant once he was served with an application to remove the caveat. I am satisfied that the delay in producing the agreement amounts to an abuse of process. If the caveat was allowed to stand, the assistance given by Brewer J with respect to the sale process would be undermined in a very material respect. Accordingly, I accept the submission advanced by Ms Low that the interests of justice would have required the removal of the caveat had the Court found that there was an arguable case to be made in support of the caveat.
The application for an interim injunction
Principles applying to interim injunctions
[38] The principles to be applied in considering applications for interim injunctions are those set out by the Court of Appeal in Klissers Farmhouse Bakeries v Harvest Bakeries Ltd.11 These are:
(a) whether there is a serious question to be tried;
(b)whether the balance of convenience favours the granting of an injunction;
(c) whether the overall justice of the case favours the granting of an injunction.
11 Klissers Farmhouse Bakeries v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).
[39] Ultimately, the task of the Court when seized of an application for an interim injunction is to balance the risk of injustice to the plaintiff by wrongly refusing to grant an interim injunction against the risk of injustice to the defendant by wrongly granting it.12
Plaintiffs’ submissions
[40] Mr Mawhinney’s first cause of action alleges that Nags Head has breached its duty of care under s 176 of the PLA to obtain the best price reasonably obtainable as at the time of sale. In his written submissions, Mr Mawhinney claimed that the best price reasonably obtainable at this time was an offer by the first plaintiff dated
29 July 2016. That offer was for $5,445,000 with $1.5 million to be paid in cash upon settlement. Mr Mawhinney points out that this offer is almost $4 million more than the offers for which Nags Head sought and obtained the approval of this Court.
[41] In support of this pleading, Mr Mawhinney observes that the duty of a mortgagee under s 176 of the PLA extends not only to the mortgagor but also to any mortgagee under a subsequent mortgage.13 He submits that the tenders for which Nags Head has sought and obtained approval would result in the subsequent mortgages being cancelled from the land register. However, in Mr Mawhinney’s submission, those mortgages would be preserved under the offer he tendered on behalf of the first plaintiff. Mr Mawhinney submits that it is the preservation of those subsequent interests which makes the price offered by the first plaintiff the best
offer in terms of s 176 of the PLA.
[42] Mr Mawhinney further observes that the only valuation by a registered valuer in existence is the rating valuation which values the property at the same price
offered by the first plaintiff.
12 Mansfield v Bilkey [2016] NZHC 752 at [7].
13 Property Law Act 2007, s 176(d).
[43] In relation to the first cause of action, Mr Mawhinney submits that Nags
Head has made three errors in calculating its liability as mortgagee:
(a) First, Nags Head erroneously considers that it would be required to pay GST on the sale of the property. For various reasons which do not require elaboration, Mr Mawhinney submits that there is no GST payable by Nags Head if it exercises its power of sale.
(b)Secondly, Nags Head erroneously considers it is liable to pay the purportedly outstanding rates tax when it has no such liability. Mr Mawhinney submits that because the first plaintiff’s offer was to accept the transfer of the mortgaged property with outstanding rates unpaid, Nags Head would not be liable for rates if this offer was accepted.
(c) Thirdly, Nags Head erroneously considers that it owes commission to Bayleys as the real estate agent conducting the tender process. In Mr Mawhinney’s submission, there would be no commission payable on the first plaintiff ’s offer because it was made prior to the commencement of the tender process ordered by the Court and was not part of it.
[44] The plaintiffs’ second cause of action alleges that Nags Head has
misrepresented the property to potential purchasers in the following ways:
(a) First, by erroneously asserting that the property “offers the possibility for three separate access points, including Anzac Valley Road”. Mr Mawhinney submits any access to the property from Anzac Valley Road is subject to leases in which the lessee has the legal right or exclusive possession rendering the use of these access points an act of trespass.
(b)Secondly, by misrepresenting to purchasers that all tenancies in respect of the property have been terminated. Mr Mawhinney submits that Nags Head is bound by a residential tenancy by virtue of s 58 of the Residential Tenancies Act 1986 because it had knowledge of the tenancy prior to advancing the loan secured by its mortgage.
(c) Thirdly, by misrepresenting that a purchaser would become the owner of the trees on the property. Mr Mawhinney submits that the forestry on the land is the subject of an agreement to lease protected by a caveat and subject to a forestry right recorded on the computer interest register.
[45] In the course of oral argument before me, Mr Mawhinney responded to a claim by counsel for Nags Head that his application is an attempt to resuscitate arguments which have already been rejected by Palmer J in his Minute of
17 February 2017. Mr Mawhinney advised that the offer has been amended so that the cash component has been increased to $1.655 million. The amended offer is, in Mr Mawhinney’s submission, a better offer than the one considered by Palmer J and thus his Minute of 17 February 2017 should not be seen as limiting the Court’s ability to grant the plaintiffs’ application for an injunction.
[46] For these reasons, Mr Mawhinney submits there are serious questions to be tried in respect of the forced sale of the property. Mr Mawhinney also submits that the balance of convenience favours the plaintiffs because Nags Head would not be prejudiced if the application for interim relief was granted. Nags Head would retain its mortgage, continue to charge interest, and, if the property was ultimately sold to the first plaintiff, would receive more money than it would from the Court-approved purchaser. Further, Mr Mawhinney submits that Nags Head received the first
plaintiff’s offer as early as July 2016 and has done nothing about it.14 In
Mr Mawhinney’s submission, the overall justice of the case requires that the first
plaintiff be given an opportunity to buy the land and settle its offer.
14 For reasons that do not need to be canvassed in order to determine the application, Nags Head does not accept this.
Discussion
[47] The application can be shortly disposed of on the grounds that Mr Mawhinney is, again, attempting to relitigate issues already substantively determined by the Court; this time the orders of Palmer J. I reject entirely Mr Mawhinney’s submission that the amended offer is a better offer than the one considered by Palmer J such that I should disregard his Minute of 17 February 2017. To the contrary, it is clear that Palmer J’s Minute would apply equally to the amended offer now before me. My reasons follow.
[48] The first point to make is that the amended offer now before the Court only differs from the original offer in that the cash component of the offer has been increased by $5,000. Given the sums involved in the Court-approved offers that amount is insignificant. Moreover, the cash component of the amended offer is equivalent to the back-up offer approved by Palmer J for $1.655 million. Despite the fact that the back-up offer exceeded Nags Head’s preferred offer of $1.65 million, Palmer J was satisfied that Nags Head could accept the lesser offer without breaching its duties under s 176 of the PLA. I fail to see, therefore, how amending the offer to match the back-up offer could possibly provide reason to depart from the directions given by Palmer J in his Minute of 17 February 2017.
[49] The second point is that the arguments advanced before Palmer J are all but perfectly symmetrical with those now advanced in support of the application for an interim injunction. The following paragraphs from Palmer J’s Minute demonstrate beyond cavil that these arguments were rejected by Palmer J:
“[5] Mr Mawhinney counters four reasons why the applicant says his offer is worse than the offer it wishes to accept:
(a) The applicant says it would have to pay GST on the sale but
Mr Mawhinney submits it would not.
(b) The applicant doubts Boulder’s ability to pay the $1.5
million cash. Mr Mawhinney says it can.
(c) The applicant considers it has an obligation to pay outstanding rates. Mr Mawhinney says it does not and, if it does, Boulder has offered to accept the land with outstanding rates.
(d) The applicant says it owes commission to its real estate agent. Mr Mawhinney says that is not the case with respect to Boulder’s offer which was made before the tender process.
[6] Mr Mawhinney submits that the applicant has misrepresented the property to potential purchasers in relation to access, tenancies and forestry.
…
…
[12] I consider the evidence provided by the applicant in support of its application demonstrates it has conducted a proper sales process. I do not consider Mr Mawhinney’s four counter-arguments demonstrate his offer is better than the unconditional offer the applicant proposes to accept. I do not consider his other allegations are likely to be sustainable. They could be pursued through separate proceedings. I am not prepared to approve his offer instead on the basis that doing that, rather than paying off the mortgage, would avoid indemnities or liens to the Official Assignee as a bankrupt.
[13] I make the directions sought by the applicant at [20] of its
memorandum …”
[50] For these reasons, I accept the submission made on behalf of Nags Head that Mr Mawhinney’s application for an interim injunction is an attempt to relitigate matters which have already been determined by Palmer J. That is an abuse of process.
Is the first plaintiff ’s offer bona fides?
[51] I am reinforced in my conclusion by a number of matters that call into
question the bona fides of the first plaintiff’s offer.
[52] Because the first plaintiff is an entity controlled by Mr Mawhinney, the first plaintiff’s offer to purchase the property is effectively an offer by Mr Mawhinney to purchase his own land. If the first plaintiff has the ability to pay the $1.655 million it could just as easily redeem the mortgage and avoid purchasing the property for the much greater price it has offered. In response, Mr Mawhinney says that purchasing the property rather than paying off the mortgage would “sanitise” and remove claims
by the Official Assignee to liens by way of trustee indemnities in respect of rates and
Court and other costs, from him as a bankrupt, under s 105 of the LTA.15
[53] Palmer J was not prepared to approve the first plaintiff’s offer on the basis of this argument. I am similarly unpersuaded by it. Mr Mawhinney has mounted a determined resistance to Nags Head’s attempts to conduct a mortgagee sale. He is clearly desperate to prevent the sale. If the first plaintiff genuinely had the financial means to execute the offer it has, I find it highly likely Mr Mawhinney would have redeemed the mortgage.
[54] Mr Mawhinney is also an undischarged bankrupt. Nags Head alone has obtained five costs awards against Mr Mawhinney which have not been paid. In other proceedings, the Court has required Mr Mawhinney to provide security for costs because of his impecuniosity. This causes me to further doubt the bona fides of the first plaintiff’s offer.
[55] In the course of hearing the application, I invited Mr Mawhinney to provide evidence of his ability to meet a costs award or an adverse claim of damages if Nags Head obtained judgment against him or his related entities after a substantive hearing. Mr Mawhinney has now filed a third affidavit dated 2 March 2017 in which he deposes as to the plaintiffs’ ability to fund any costs or damages award ordered against them. Mr Mawhinney deposed that the plaintiffs hold interests in nearly 30 hectares of land which is contiguous with the property. He says a contract has been entered into with a forestry company to harvest the trees. He estimates that the net proceeds from a potential harvest would be $658,125. Even assuming the correctness of Mr Mawhinney’s calculation, the trees are yet to be harvested. No evidence has been adduced to suggest that the first plaintiff could presently pay the
$1.655 million it has offered.
[56] In view of these matters, I hold grave concerns as to the legitimacy of the
first plaintiff’s offer. These concerns strengthen my view that the plaintiffs’
application for an interim injunction amounts to an abuse of process.
15 See Minute (No 1) of Palmer J, above n 2, at [7].
Appropriate relief
[57] Having reached the conclusion that the plaintiffs’ application amounts to an abuse of process, the question becomes whether I should strike out the plaintiffs’ application for an interim injunction as well as its statement of claim or whether I should decline the application for an interim injunction and allow the matter to proceed to a substantive hearing. Adopting the second course would entitle the plaintiffs to damages against Nags Head if the arguments advanced by Mr Mawhinney were ultimately accepted after a substantive hearing.
[58] However, in my view, the only realistic and practical course is to strike out both the application for an interim injunction and the statement of claim. Although Palmer J’s directions were given in the form of a Minute, those were final, binding and substantive directions. To allow the matter to proceed to a substantive hearing would be to permit a collateral attack on those directions. That would not be proper.
[59] I note that the time to bring an appeal against the orders contained within Palmer J’s Minute has not yet expired. Mr Mawhinney could apply to this Court16 or the Court of Appeal for a stay of enforcement pending resolution of the appeal.17
Result
[60] Nags Head’s application in the 258 proceedings to remove caveat instrument
No. X9456724.1 from certificate of title 80938 is granted.
[61] The plaintiffs’ application in the 280 proceedings for an interim injunction
restraining Nags Head from taking any steps to sell the property is struck out.
[62] The plaintiffs’ statement of claim in the 280 proceedings is also struck out.
Costs
[63] Nags Head, as the successful party in respect of all matters is entitled to costs. I am of the view that costs should be awarded on a 2B basis. If the parties
16 Rule 17.29 of the High Court Rules.
17 Rule 12(3) of the Court of Appeal (Civil) Rules 2005.
cannot agree I direct Nags Head to file and serve a memorandum within 20 working days of the date of this judgment with Mr Mawhinney filing and serving his
memorandum 10 working days thereafter.
Moore J
Solicitors:
Alexandra Low & Associates, Auckland
Copy to:
The Respondents/Plaintiffs
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