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…

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: [2025] NZHC 2239
Decision Date: 11 August 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Peter-Richard Prescott, an undischarged bankrupt, sought an order for the return of a property to the Capricorn Trust, alleging that ASB Bank Limited unlawfully conducted a mortgagee sale of the property. ASB applied for the claim to be struck out and/or for summary judgment, arguing that Mr Prescott lacked standing to bring the claim and that the claim was frivolous and vexatious. The court considered the principles of striking out pleadings and entering summary judgment, and whether the claim could succeed. Mr Prescott argued he had standing as a representative of the beneficiaries of the trust and that the mortgage was not validly executed. However, the court found that Mr Prescott had no standing to bring the claim as he was neither a trustee of the trust at the relevant time nor a representative of the beneficiaries. Furthermore, the court found that the claim was unlikely to succeed due to the clear evidence that the mortgage was validly executed and the sale was conducted properly. Consequently, the court granted ASB's application to strike out the claim and entered summary judgment in favour of ASB, with costs to follow the event.

Orders