Pepper New Zealand (Custodians) Limited v Woollett

[2013] NZHC 202

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2012-454-566 [2013] NZHC 202

BETWEEN  PEPPER NEW ZEALAND (CUSTODIANS) LIMITED Plaintiff

ANDMATTHEW STEWART WOOLLETT AND MELANIE VENUS CINDERELLA MAXIM

Defendants

Hearing:         14 February 2013

(Heard at Palmerston North)

Counsel:         M. Dobson - Counsel for Plaintiff

R. Lewis - Counsel for First-Named Defendant M.S. Woollett
No appearance for the Second-Named Defendant M.V.C. Maxim

Reasons:        14 February 2013

REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver these Reasons for Decision at 3.00 pm on 14 February 2013.

Solicitors:           McVeagh Fleming, Solicitors, PO Box 4099, Auckland 1140

RichardLewis Law, PO Box 941, Palmerston North 4440

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED V MS WOOLLETT AND MVC MAXIM HC PMN CIV-2012-454-566 [14 February 2013]

Introduction

[1]      Before the Court this  morning 14  February 2013  was  an application for summary judgment brought by the plaintiff.

[2]      Mr Dobson appeared as counsel for the plaintiff and Mr Lewis appeared as counsel for the first-named defendant, Matthew Stewart Woollett (Mr Woollett). There was no appearance for the second-named defendant, Melanie Venus Cinderella Maxim (Ms Maxim).

[3]      At the hearing of this matter today I made an order by way of summary judgment effectively unopposed as sought by the plaintiff in its statement of claim. This was to the effect that the defendants forthwith were to vacate and deliver up possession to the plaintiff of the property at 327 College Street, Palmerston North (the property) outlined at para [2] of the plaintiff’s statement of claim.

[4]      In making that decision, I indicated that my detailed reasons would follow. This would include my decision on the question of costs on the application sought by the plaintiff which earlier today had been reserved.

[5]      I now set out those reasons and my decision on costs.

Reasons for Decision

[6]      In the plaintiff ’s statement of claim it sought an order for vacant possession of the property at 327 College Street, Palmerston North from the defendants on the basis that they were unlawful occupiers of the property.

[7]      Around 13 June 2006 the plaintiff through its predecessor  TEA Custodians (Pacific) Limited agreed to advance to the defendants $224,147.00 pursuant to a loan agreement and a mortgage over the property.

[8]      The  defendants  subsequently  defaulted  under  the  mortgage  and  loan agreement and on 24 February 2012 a notice pursuant to s 119 Property Law Act

2007 was served requiring payment of $3,807.24 by way of unpaid principal and interest instalments then outstanding.

[9]      The defendants failed to remedy that default with the result that on 5 April

2012, in terms of the loan agreement and mortgage, the full  monies advanced to the defendants became due and owing.

[10]     On or about 16 May 2013 the plaintiff made demand upon the defendants to vacate the property by 28 May 2012 which it was entitled to do in terms of s 137

Property Law Act 2006.

[11]     The  defendants  failed  to  vacate  the  property  and  effectively  still  remain unlawful occupiers of the property.

[12]     In this regard before me Mr Lewis counsel for Mr Woollett indicated that Mr Woollett now consents to the summary judgment possession order being granted to the plaintiff as sought here.

[13]     Mr Lewis explained that Mr Woollett now has possession of the property as recently it had been vacated by Ms Maxim who previously was in occupation.  Mr Lewis advised the Court that when Ms Maxim vacated the property Mr Woollett discovered that it had been substantially damaged.

[14]     I repeat that Mr Woollett effectively now consents to the summary judgment application which is before me.

[15]     As to her position, it is noted that Ms Maxim was served personally with this proceeding  on  29  August  2012.    She  has  however  provided  no  opposition  or statement of defence to the application which is before me.   Nor is there any appearance on her behalf before me today.

[16]     That said, I am satisfied that good reason exists for the grant of summary judgment sought here by the plaintiff to be made.

[17]     The order made by way of summary judgment for possession of the property in favour of the plaintiff noted at para [3] above was therefore made earlier today.

Costs

[18]     As to costs on this application, before me counsel for the plaintiff confirmed that costs were sought but only on a category 2B basis.

[19]     As the plaintiff has succeeded in its present summary judgment application I

see no reason why costs should not be awarded to it in the usual way.

[20]     Costs are therefore awarded to the successful plaintiff against the defendants on the present summary judgment application on a category 2B basis together with disbursements as fixed by the Registrar.

‘Associate Judge D.I. Gendall’