Prescott v ASB Bank Limited

[2025] NZHC 2239

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2916

[2025] NZHC 2239

BETWEEN

PETER-RICHARD PRESCOTT

Plaintiff/Respondent

AND

ASB BANK LIMITED

Defendant/Applicant

Hearing:	21 July 2025
Appearances:	B J Upton and B P Marshall-Lee for the Defendant/Applicnat Plaintiff/Respondent in person
Judgment:	11 August 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Defendant’s application for strike out and/or summary judgment]

This judgment was delivered by me on 11 August 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

………………………….

Registrar/Deputy Registrar

Solicitors:

Simpson Grierson (Ben Upton/Ben Marshall-Lee), Auckland, for the Defendant/Applicant

Copy for:

Peter Richard Prescott, Plaintiff/Respondent

PRESCOTT v ASB BANK LIMITED [2025] NZHC 2239 [11 August 2025]

Application

[1]    The plaintiff, Mr Peter-Richard Prescott (Mr Prescott), is an undischarged bankrupt. He seeks, as a purported trustee of the Capricorn Trust, an order for the return of a property at 14a Target Road, Auckland (the Property) to the Capricorn Trust (the Trust).

[2]    The statement of claim challenges the legitimacy of a mortgage registered in 2008 by Mortgage Holding Trust Company Limited (now ASB Bank Limited (ASB), following amalgamation) and alleges that the Bank carried out an unlawful mortgagee sale of the Property in 2014.

[3]    ASB has applied for the claim to be struck out and/or summary judgment entered in its favour because:

(a)Mr Prescott is not a trustee of the Trust and thus has no standing to bring the claim; and

(b)in any event, the cause of action in the claim cannot succeed, is an abuse of process, prejudicial, frivolous and vexatious.

Background

[4]In September 2008, Mortgage Holding Trust Company Limited, advanced

$448,000 to Commercial Logistics Limited and Jacqueline Ann Aston (Ms Aston), as trustees of the Trust. As security for the advance, the trustees granted ASB a mortgage over the Property. Mr Prescott was the sole director of Commercial Logistics Limited at that time.

[5]    On 12 April 2012, Ms Aston notified ASB that she had retired as a trustee. This was confirmed by solicitors acting for the Trust in August 2013.

[6]    The Trust defaulted on its payment obligations to ASB under the loan and the Property was eventually sold by ASB as mortgagee on 3 April 2014, with settlement taking place on 30 April 2014.

[7]    Shortly before settlement, on 23 April 2014, Mr Prescott issued proceedings in this Court against ASB "in his capacity as Trustee of Capricorn Trust" under file number CIV-2014-404-947 (the 2014 Proceeding). He sought an injunction to prevent the sale of the Property, alleging that ASB lacked the authority to sell it.

[8]    ASB opposed the injunction application and filed a detailed affidavit from an ASB executive, Mr Thornton Dabb explaining why ASB was entitled to sell the Property as mortgagee. That affidavit exhibited, among other things, the Land Information New Zealand registration record of the mortgage over the Property, the registered mortgage instrument, and default notices served under s 119 of the Property Law Act 2007 which had expired unremedied.

[9]On 28 April 2014, Mr Prescott discontinued the 2014 Proceeding.

[10]   Six years later, in February 2020, Mr Prescott wrote to Simpson Grierson, ASB, and the Registrar General of Lands claiming, among other things, that there had been a fraudulent conveyance of the Property in 2014.

[11]   Mr Prescott was adjudicated bankrupt on 28 February 2022. Commercial Logistics Limited was removed from the Companies Register on 18 August 2022. Since that date, the Trust has had no trustee.

[12]   On 2 April 2024, Mr Prescott, attempting to act as a trustee of the Trust, filed an application for pre-action disclosure of certain documents from ASB in CIV-2024- 404-867 (the 2024 Application). Mr Prescott said he needed the documents to formulate a claim against ASB. He intended to claim that the mortgage over the Property was fraudulently obtained and the sale by ASB was unlawful. ASB opposed the 2024 Application.

[13]   On 8 October 2024, Venning J issued a judgment dismissing the 2024 Application, primarily on grounds that the orders sought were not necessary. In that decision he also said:1

[17]       In any event, although it is  unnecessary  to  go  further,  I  accept Mr Upton's submission that Mr Prescott has no standing to bring the application. Mr Prescott was not a trustee of the [Capricorn] Trust at the time the loan agreement was made and the mortgage registered in 2004, nor at the time of the sale of the property. At the relevant time the trustees were Commercial Logistics Ltd and Jacqueline Ann Aston. Any claim by the Trust must be brought by its trustee(s). Commercial Logistics Ltd has been removed from the Companies Register. Ms Aston has resigned.

[18]      Mr Prescott has purported to appoint himself as a trustee, but at the time he was and remains an undischarged bankrupt. Section 96(2) of the Trusts Act 2019 confirms that an undischarged bankrupt is disqualified from being appointed as a trustee. While s 96(3) provides an undischarged bankrupt may be appointed trustee with the consent of the Court, no such consent has yet been obtained from the Court.

This application

[14]   On 9 October 2024, Mr Prescott filed the claim against ASB. On 2 December 2024, ASB filed the strike out/summary judgment application (the Strike Out Application).

[15]   Evidently, counsel for ASB had told Mr Prescott of ASB's intention to file the Strike Out Application. On 28 November 2024, prior to the filing of the Strike Out Application, Mr Prescott filed a memorandum; a notice of opposition and an affidavit in support. These were pre-emptive filings.

[16]   In January 2025, Mr Prescott filed an application that counsel to assist the Court be appointed. Associate Judge Brittain declined that application on 11 June 2025.

Legal principles

Strike out

[17]Rule 15.1 of the High Court Rules 2016 relevantly provides:

1      Prescott v ASB Bank Limited [2024] NZHC 2927 at [17] and [18].

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

[18]There are established criteria for strike-out:2

(a)a strike-out application proceeds on the assumption the pleaded facts are true, unless those pleaded facts are entirely speculative or without foundation;

(b)the cause of action or defence must be clearly untenable;

(c)the jurisdiction is to be exercised sparingly and only in clear cases;

(d)the jurisdiction is not excluded by the need to decide difficult questions of law; and

(e)the Court should be slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation.

Summary judgment

[19]   Rule 12.2(2) of the High Court Rules 2016 provides that the Court may enter judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[20]   The test for defendant’s summary judgment was set out by the Court of Appeal in Stephens v Barron:3

2      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

3      Stephens v Barron [2014] NZCA 82 at [9] (footnotes omitted).

(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.

(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.

(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.

(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.

[21]In Westpac Banking Corp v M M Kembla New Zealand Ltd, Elias CJ said:4

[63]      Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff's claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff's case prematurely before completion of discovery or other interlocutory steps and before the plaintiff's evidence can reasonably be assembled.

[64]      The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.

4      Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298.

[22]   In Bernard v Space 2000 Ltd, Thomas J, referring to r 12.2(2)’s predecessor, described the onus on the defendant as requiring something of a silver bullet:5

Rule 136(2) … is only appropriate where the defendant has a “clear answer to the plaintiff which cannot be contradicted”. Summary judgment for a defendant “will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim” … The requirement that there be a clear answer which cannot be contradicted and a complete defence before judgment is entered for a defendant under r 136(2) is not to be disregarded. Examples which are given of appropriate cases for summary judgment under the subrule are where the wrong plaintiff has proceeded … or where the situation is clearly one of qualified privilege … Thus, the subrule contemplates an answer which is clear-cut …

Submissions for ASB

[23]   Mr Upton, for ASB, submits that the claim discloses no reasonably arguable case appropriate to the nature of the pleadings because Mr Prescott has no standing to bring it. He submits Mr Prescott is not a trustee of the Trust, and in addition the claim will cause prejudice, is frivolous, vexatious, and otherwise an abuse of process.

Standing

[24]   Mr Upton notes that Mr Prescott seeks return of the Property to the Trust, in his purported capacity as a trustee. The pleadings disclose no case that is appropriate to its nature because Mr Prescott is not, and never has been, a validly appointed trustee of the Trust.

[25]   Mr Upton points out that Mr Prescott is an undischarged bankrupt and s 96 of the Trusts Act 2019 provides that an undischarged bankrupt is disqualified from being appointed as a trustee of a trust without consent of the Court. Mr Prescott has made an application to the Court to obtain consent to act as a trustee which was declined by Johnstone J on 24 July 2025. In any event, Mr Prescott was not a trustee of the Trust when the claim was made.

5      Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 at [21] (citations omitted).

Mr Prescott as a representative of the beneficiaries

[26]   As will be noted later in this judgment, Mr Prescott purports to be a representative of the beneficiaries of the Trust, and while the original claim brought as a trustee of the Trust was challenged by ASB for his lack of standing, he asserts that his standing as representative of the beneficiaries overcomes this problem.

[27]   Mr Upton submits that if the claim is changed from a claim by the trustees of the Trust to a claim by the beneficiaries of the Trust, then that would require an application to substitute the beneficiaries as plaintiffs, or join the beneficiaries as plaintiffs which would require consent of the relevant beneficiaries. He submits that no application has been made to join the beneficiaries or substitute them as plaintiffs, and no consent of the beneficiaries has been provided to the Court. Accordingly, he submits that Mr Prescott has no standing to bring the claim as representative of the beneficiaries.

Claim not arguable

[28]   Mr Upton submits that the claim discloses no reasonably arguable cause of action, is frivolous, vexatious, and an abuse of process. He says it will cause prejudice to ASB for all of those reasons.

[29]   Mr Upton notes that while Mr Prescott submits that the underlying mortgage was fraudulently obtained and that the power of sale was wrongly exercised, none of these allegations are capable of serious argument for the following reasons:

(a)As explained to Mr Prescott in 2014 (in the context of the abandoned 2014 Proceedings) and 2020, and in the evidence filed in the 2024 Application, contemporaneous documents show that:

(i)the then trustees of the Trust entered into a binding loan agreement with ASB;

(ii)the trustees agreed to grant, as security for the loan, a first ranking mortgage to ASB over the Property;

(iii)the trustees and ASB engaged a lawyer at Sanderson Weir to register the mortgage over the Property. The trustees provided certificates and passed resolutions confirming their agreement to the loan and mortgage. Copies of those documents were signed by Mr Prescott (as director of Commercial Logistics Limited) and provided to ASB;

(iv)Jillian MacMillan, of Sanderson Weir, registered the mortgage over the Property on 20 October 2008 on the instructions of both the trustees and ASB; and

(v)there was a monetary default of the loan agreement, and a full and proper mortgagee sale process was conducted after service of required notices under the Property Law Act 2007. The proceeds were properly accounted for under that Act;

(b)the Deed  of  Appointment  of  Enduring  Power  of  Attorney  that  Mr Prescott claims ASB never executed is irrelevant. The mortgage was not registered by ASB under a power of attorney. It was registered by the Trust's own lawyer and the power of attorney was never relied on in the mortgagee sale;

(c)the claim also attempts to relitigate Mr Prescott's standing to bring proceedings on behalf of the Trust which has already been determined by Venning J in the 2024 Application. Attempting to relitigate that issue, in addition to the allegations surrounding the mortgagee sale (which were raised and abandoned in the 2014 Proceedings) are frivolous, vexatious and an abuse of process; and

(d)the claim is likely time-barred. ASB cannot return the Property which was sold to a bona fide third party for value in 2014. Any claim could only be a claim for damages and therefore a “money claim” under the Limitation Act 2010. The claim would need to have been brought by the trustees of the Trust within 6 years of the date of sale

(by 30 April 2020). Mr Prescott issued the claim on 9 October 2024 and accordingly ASB has a complete defence to the claim under s 11 of the Limitation Act 2010.

[30]   Mr Upton therefore submits that Mr Prescott’s claim cannot succeed and should be struck out.

Summary judgment

[31]   Mr Upton, in respect of the application for defendant’s summary judgment, submits that Mr Prescott’s claim cannot succeed for the reasons set out at [23] to [30] of this judgment. He reiterates that Mr Prescott has no standing to bring the claim, and that it is clear that Mr Prescott’s claim lacks any merit and can be dealt with substantively by way of summary judgment.

[32]   Mr Upton submits that given Mr Prescott’s repeated attempts to re-litigate this claim, it is appropriate for summary judgment to be granted on the basis that the claim itself cannot succeed, in addition to Mr Prescott’s lack of standing.

Submissions for Mr Prescott

[33]Mr Prescott submits that the Court need only consider three issues:

(a)Did ASB have a valid mortgage?

(b)Did ASB have a power of attorney?

(c)Does he have standing to bring a claim?

[34]   Mr Prescott submits that ASB had no lawful authority to sell the Property without a court order, as he alleges there was no valid mortgage instrument and therefore no power of sale. He submits the mortgage was not valid because the trustees never executed it. Mr Prescott submits that ASB could only legally sell the Property if it had a valid mortgage instrument, or if ASB had an enduring power of attorney from the Trust.

[35]   Mr Prescott submits that had the mortgage been executed, at least four copies would exist, and LINZ, ASB, the Trust’s lawyers, and the trustees would each have one. He says that no one can provide a copy of the document because simply it does not exist. Mr Prescott suggests that ASB has not rebutted his evidence that it had no valid mortgage or right to sell the Property.

[36]   Mr Prescott submits that his earlier claims of having been a trustee “have become irrelevant” because the matter has “moved on” through his application to be appointed a trustee. He says he is nevertheless now a representative of the beneficiaries of the Trust, and can advance his claim that way. He submits that ASB’s reliance on a standing issue is merely an attempt to “cloak” fraud, and should be bypassed by the Court.

[37]   Mr Prescott submits that even if the Trust did not have a trustee, as a matter of equity, the Trust would be alive in law, and he would have the right to claim on its behalf as a representative of the beneficiaries.

[38]He submits that:

Equity provides the remedy where economic interests are engaged because the common law remedies are either non-existent or where there is a misappropriation of property deemed to be inadequate. The equitable power of the Court is not bound by cast iron rules, but exists to do fairness, and is flexible, and is adaptable to particular needs so that relief will be granted, when given all the circumstances to deny it would permit one party to suffer a gross wrong at the hands of the other.

…

… the principle that equity aims to provide a remedy for every wrong or injury suffered. It prevents situations where a party is left without recourse, due to technicalities or limitations of common law. The technicality that equity overcomes in this instance is the bankruptcy. Though as authorised representatives of the Beneficiaries the bankruptcy is irrelevant to this proceeding.

[39]   In summary, Mr Prescott asks the Court to exercise its equitable jurisdiction to prevent an injustice occurring from the transfer of the Property.

[40]In conclusion, Mr Prescott submits:

(a)The selling of the Property was fraudulent, as it was reliant on fraudulent certifications, and ASB has not been able to prove otherwise. The strike out application is an attempt to use statute to cloak the fraud;

(b)he has proven there is a genuine issue requiring a trial and the Court must therefore dismiss ASB’s strike out and summary judgment application as ASB has not met the requirements set out by the Court of Appeal in Krukziener v Hanover Finance Ltd.6

Result

[41]   I am of the view that the application by ASB to strike out Mr Prescott’s claims should be granted. In addition, the defendant’s summary judgment should be entered in favour of the ASB.

[42]   Mr Prescott has no standing to bring the claim on behalf of the Trust. As has already been dealt with in the judgment of Venning J, Mr Prescott was not a trustee of the Trust at the time the mortgage was entered into, or at the time of the sale of the Property. While he has applied to be appointed as a trustee, that application has been dismissed. In any event, he was not a trustee at the time the mortgage was given or at the time the Property was sold.

[43]   Mr Prescott’s attempt to characterise himself as a representative of the beneficiaries of the Trust as a means of overcoming the issue of his standing does not alter the position. Either the claim is brought by the trustees of the Trust, or by the beneficiaries of the Trust. If brought by the beneficiaries, the beneficiaries would either need to be added or substituted as plaintiffs in the claim, which has not occurred, and the beneficiaries would need to have consented to being plaintiffs in respect of the claim. No application has been made to the Court to add or substitute the beneficiaries as plaintiffs, and no consents of the beneficiaries to become plaintiffs have been presented to the Court.

6      Krukziener v Hanover Finance Ltd [2008] NZCA 187.

[44]   Mr Prescott’s lack of standing is sufficient to dispose of the proceeding and justify ASB’s strike out application. However, as Mr Upton has made submissions that the claim cannot succeed and is frivolous and vexatious, and Mr Prescott has made opposing submissions, I will deal with this aspect in the proceeding.

[45]In my view, the claim by Mr Prescott cannot succeed for the following reasons:

(a)It is clear from the evidence provided by ASB that the trustees of the Trust entered into a binding agreement for the loan and to grant a mortgage over the Property as security for the loan. The mortgage was executed in accordance with the proper procedure by the solicitors acting for the Trust and for the ASB and registered accordingly. While Mr Prescott asserts that the trustee did not execute the mortgage, this is clearly not necessary as the trustees provided certificates and authorisations confirming their agreement to the loan and mortgage and the necessary authorisation documents to allow registration (including the directors’ certificates and trustee certificates);

(b)Mr Prescott’s submission that ASB held no enduring power of attorney from the Trust allowing it to register the mortgage is irrelevant, as the mortgage was not registered using the power of attorney but registered by the Trust’s own solicitors using the authorisations provided by the trustees of the Trust; and

(c)while Mr Prescott alleges the solicitors acting for the Trust and ASB, Sanderson Weir, were fraudulent in certifying that they were authorised to execute the mortgage, there is no evidence of fraud and, to the contrary, the evidence is that the trustees’ authorisations authorised them to do exactly that.

Orders

[46]I make the following orders:

(a)Mr Prescott’s claim against ASB is struck out;

(b)defendant’s summary judgment is to be entered in favour of ASB; and

(c)as ASB is the successful party, costs should follow the event. Counsel for ASB and Mr Prescott are directed to endeavour to agree costs and, failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for ASB will file a memorandum as to costs (not to exceed five pages) within five working days after the expiry of the 20 working day period, and Mr Prescott will file a memorandum (not to exceed five pages) in  response  within five working days of  receipt  of  counsel  for  ASB’s  memorandum. A decision as to costs will then be made on the papers.

…………………………….. Associate Judge Taylor