Rocket Surgery Limited v Goodwin - [2013] NZHC 2648

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2013-412-000406 [2013] NZHC 2648

BETWEEN
ROCKET SURGERY LIMITED

Plaintiff

AND

WAYNE ERNEST GOODWIN

and MARY ELIZABETH GOODWIN
First Defendants

AND

JAMES PATON and JESSIE PATON

Second Defendants

Hearing:

24 September 2013

Appearances:

D P Robinson for Plaintiff A Beck for First Defendants

No appearance for Second Defendants

Judgment:

10 October 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on plaintiff’s summary judgment application

Introduction

[1] The plaintiff, Rocket Surgery Ltd, (RSL), is the registered proprietor of a Dunedin property. The first defendants, Wayne and Mary Goodwin (the Goodwins), are in occupation of the property. The second defendants, James and Jessie Paton, were at one time also in occupation of the property but are no longer. RSL considers it no longer needs orders against Mr and Mrs Paton and a hearing of the claim against them is accordingly not required.

What RSL seeks

[2] RSL applies for an order for possession of the property, by summary judgment.

ROCKET SURGERY LIMITED v GOODWIN [2013] NZHC 2648 [10 October 2013]

What Goodwins seek

[3] The Goodwins oppose the RSL application. They have cross-applied for orders striking out or staying RSL’s proceeding.

The issue for the Court

[4] On the Goodwins’ cross-application the Court must determine:

(a)Does RSL’s present proceeding constitute an abuse of process because:

(i)RSL commenced the proceeding when an earlier proceeding seeking substantially the same relief remained extant; and/or

(ii)RSL, having subsequently discontinued the earlier proceeding, has not paid costs on the discontinuance.

(b)If so, should RSL’s present claim be struck out or stayed?

[5] If the Goodwins’ application is unsuccessful, then RSL, to succeed on a claim for possession, must establish that the Goodwins have no arguable defence in relation to the propositions that:

(a)RSL has an interest in the property as registered proprietor; and

(b)The Goodwins are not in lawful occupation of the property.

The background

Factual background

[6] The substantive rights of the parties have previously been considered by this Court in my judgment on a summary judgment application1 and by the Court of

1 Rocket Surgery Ltd v Goodwin [2012] NZHC 2752.

Appeal which allowed the Goodwins’ appeal, setting aside summary judgment and consequential relief which have been ordered in the High Court.2

[7] The history is reflected in the following summary from the judgment of the Court of Appeal:3

The Goodwins owned a residential property at Mosgiel, near Dunedin, known as “Chelmsford”. They fell into financial difficulties and faced a sale by the mortgagee, Westpac Banking Corporation.

The Goodwins’ son-in-law, Campbell Harvey, agreed to assist in saving Chelmsford from sale. Mr Harvey and some colleagues were shareholders in RSL, a small private company. RSL agreed to borrow a sufficient sum to buy the property at the mortgagee’s sale and to cover financing costs for a year after purchase while the Goodwins recovered financially. The ultimate purpose was to enable the Goodwins to buy Chelmsford back in their own names or through a nominee.

It was agreed in principle…

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.

Continue reading Rocket Surgery Limited v Goodwin

Details

AGLC: Rocket Surgery Limited v Goodwin [2013] NZHC 2648
Case: [2013] NZHC 2648
Decision Date: 10 October 2013

CaseChat Overview and Summary

Rocket Surgery Limited (RSL) is the registered proprietor of a Dunedin property which is currently being occupied by Wayne and Mary Goodwin (the Goodwins). RSL has applied for summary judgment seeking possession of the property and the Goodwins oppose the application. The Goodwins have also applied to strike out or stay RSL's proceeding. The Court must determine whether RSL's proceeding constitutes an abuse of process and, if so, whether the proceeding should be struck out or stayed. If the Goodwins' application is unsuccessful, the Court must determine whether RSL's claim to possession is supported by evidence. The Court found that RSL's proceeding did not constitute an abuse of process because, although it was issued while an earlier proceeding was still extant, it was discontinued shortly thereafter without the payment of costs. The Court also found that the Goodwins had no arguable defence to RSL's claim to possession because they had no continuing right of occupation of the property and no beneficial interest in it. The Court granted summary judgment to RSL and ordered the Goodwins to vacate the property by a specified date. The proceeding in relation to RSL's remaining claims is adjourned for mention.

Orders