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 DefendantsAND
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
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…
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- Rocket Surgery Limited v Goodwin [2013] NZHC 2648
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- [2013] NZHC 2648
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