S M v ASB Bank Limited

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE

IN THE SUPREME COURT OF NEW ZEALAND

SC 25/2012
[2012] NZSC 48

BETWEEN S M
Applicant

AND ASB BANK LIMITED
Respondent

Court: Elias CJ, Tipping and William Young JJ

Counsel: P L Twist for Applicant
M V Robinson and E C Gellert for Respondent

Judgment: 25 June 2012

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to the respondent.

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REASONS

The applicant seeks leave to appeal to this Court from a judgment of the Court of Appeal[1] dismissing her appeal against a determination of the High Court[2] that ASB Bank was entitled to exercise its rights as mortgagee over a property in respect of which the appellant had a right of occupation granted by order of the Family Court under s 27 of the Property (Relationships) Act 1976. The right of occupation was secured by notice of claim under s 42 of the Property (Relationships) Act. In the High Court and Court of Appeal, it was held that the presumption under s 46 of the Property (Relationships) Act of priority for the mortgage (which had been registered three years before notice of claim of interest under s 42 of the Property (Relationships) Act) was not rebutted on the facts, in application of ss 43 and 44 of the Property (Relationships) Act. The judgment of the Court of Appeal also allowed a cross-appeal by the respondent bank against conditions imposed by the High Court Judge on the orders he made relating to removal of the notice of claim of interest and the applicant’s vacation of the property.
[1]SM v ASB Bank Ltd [2012] NZCA 103 (Arnold, Randerson and Stevens JJ).
[2] ASB Bank Ltd v SM HC Auckland CIV 2011-404-5239, 30 September 2011 (Whata J).
In the High Court and Court of Appeal, the findings of fact excluded any question of the bank being implicated in a disposition “in order to defeat the claim or rights of any person under the Property (Relationships) Act” as is required by ss 43 and 44. The relevant legal principles are well established and were carefully applied by the Court of Appeal in a thorough judgment on the appeal. No matter of general or public importance arises. Given the findings of facts in the lower courts, the appeal has no reasonable prospect of success. The contention that the notice of claim could have priority over an earlier registered mortgage is untenable. There is no appearance of miscarriage of justice.
For these reasons, the application for leave to appeal is declined. The applicant must pay the respondent costs on the application for leave to appeal, fixed at $2,500.

Solicitors:

Edwards Clark Dickie, Auckland for Applicant
Simpson Grierson, Auckland for Respondent

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicant, S M, sought leave to appeal against a decision of the Court of Appeal which had dismissed her appeal against a High Court ruling. The High Court had determined that ASB Bank Limited was entitled to exercise its rights as a mortgagee over a property for which the applicant held a right of occupation. The applicant's right of occupation was secured by a notice of claim under the Property (Relationships) Act 1976. The Court of Appeal upheld the High Court's decision, finding that the presumption of priority for the mortgage, registered three years prior to the notice of claim, was not rebutted. The Court of Appeal also allowed a cross-appeal by the respondent bank against certain conditions imposed by the High Court on the orders made relating to the removal of the notice of claim and the applicant's vacating of the property.

The legal issues before the Supreme Court were primarily concerned with whether the presumption of priority for the mortgage was correctly applied and whether there was any reasonable prospect of success for the applicant's appeal. The court examined the application of sections 43 and 44 of the Property (Relationships) Act, which require any disposition to be implicated in order to defeat the claim or rights of any person under the Act. The Supreme Court concluded that the Court of Appeal had carefully applied the relevant legal principles and that the findings of fact excluded any question of the bank being implicated in such a disposition. The Court found no matter of general or public importance arose from the case, and the contention that the notice of claim could have priority over an earlier registered mortgage was deemed untenable.

The Supreme Court found that the appeal had no reasonable prospect of success and that there was no appearance of a miscarriage of justice. Consequently, the application for leave to appeal was dismissed. The applicant was ordered to pay the respondent costs of $2,500 for the application for leave to appeal. The Court's decision affirmed the lower courts' findings and the application of the Property (Relationships) Act in this context.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established