Secure Funding Limited v Milgrew - [2024] NZHC 176

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-99

[2024] NZHC 176

UNDER the Companies Act 1993 and the Property Law Act 2007

BETWEEN

SECURE FUNDING LIMITED

Applicant

AND

LISA ANNE MILGREW and MILGREW TRUSTEE LIMITED

First Respondents

LISA ANNE MILGREW

Second Respondent

Hearing: 5 December 2022

Counsel:

OJ Morgan and CS Frost for the Applicant No appearance for the Respondents

Judgment:

15 February 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 15 February 2024 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Tompkins Wake, Hamilton

SECURE FUNDING LTD v MILGREW [2024] NZHC 176 [15 February 2024]

Table of Contents

Introduction [1]

Summary judgment principles [7]

Factual background [9]

The Agreement  [10]
Extension of initial six-month loan term  [14]
Default under the Agreement  [16]

Have the PLA requirements been complied with? [27] Should summary judgment be granted for an order for possession [42] Should summary judgment be entered for the judgment sum sought? [46] Costs [99]

Result [101]

Introduction

[1] The applicant, Secure Funding Ltd, applies for summary judgment of its claim for an order for possession of a property in Hidcote Place, Bethlehem, Tauranga, together with judgment for $277,420.33 plus ongoing interest, costs and disbursements. The claim is based on the respondents’ default under a loan agreement which was secured by way of mortgage over the property.

[2] An order for possession may be made by the Court once a mortgagee is entitled to enter into possession of the mortgaged land under the mortgage and has complied with the notice and remedial period requirements in subpart 5 of pt 3 of the Property Law Act 2007 (PLA).1

[3] The respondents did not file a statement of defence or notice of opposition within the time required or at all so the applicant sought to proceed to summary judgment on the papers. Since then, I have issued two minutes directing further submissions and evidence as several issues have arisen including in relation to the s 119 notices served under the PLA and the calculation of the sums outstanding.

[4] The applicant now seeks judgment for the increased amount of $362,432.84. The original sum sought included principal, interest and default fees owing at 30 August 2022 plus ongoing interest, costs and disbursements. The amended sum

1 Property Law Act 2007, s 137(1).

corrects errors made (as discussed in further detail below) and includes interest accrued up to 7 June 2023.

[5] Below, I consider the PLA requirements and whether they have been complied with before considering the appropriate orders to be made.

[6] For completeness I record that when the proceedings were first issued, Milgrew Trustee Ltd had been removed from the Companies Register so, in addition to the orders for possession and judgment, Secure Funding applied for restoration orders. On 7 October 2022, the Registrar of Companies restored Milgrew Trustee to the Register so an order for restoration is…

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: [2024] NZHC 176
Decision Date: 15 February 2024

CaseChat Overview and Summary

Secure Funding Limited brought an application for summary judgment against Lisa Anne Milgrew and Milgrew Trustee Limited, seeking an order for possession of a property in Hidcote Place, Bethlehem, Tauranga, along with judgment for $362,432.84 plus ongoing interest, costs, and disbursements due to the respondents' default under a loan agreement secured by a mortgage over the property. The respondents did not file a statement of defence or notice of opposition within the required time, prompting the applicant to seek summary judgment on the papers. The court considered whether the Property Law Act 2007 (PLA) requirements had been complied with and whether the appropriate orders should be made. The court found that the s 119 notices served under the PLA sufficiently complied with the requirements, despite minor calculation errors, and that the respondents had failed to remedy the default within the required period. The court concluded that it was appropriate to grant an order for possession of the property. However, regarding the judgment sum sought, the court found that there was an arguable defence concerning the interest rate applied to the loan after the facility expired. Consequently, the court granted summary judgment in part, ordering the respondents to vacate and deliver up possession of the property, and entering judgment for the principal sum of $225,000, interest, fees, and costs. The court left it to the parties to resolve the remaining amounts due or for Secure Funding to continue with formal proof for the additional interest.

Orders