Serepisos v Black Robin Equity Limited - [2023] NZHC 2996

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-728

[2023] NZHC 2996

BETWEEN
ELEFTHERIOS SEREPISOS and LAMBROS SEREPISOS

as Trustees of The JDS FAMILY TRUST First Plaintiffs

ELEFTHERIOS SEREPISOS
Second Plaintiff

AND

BLACK ROBIN EQUITY LIMITED

First Defendant

NEVAY NOMINEES LIMITED, previously known as BLACK ROBIN NOMINEES

LIMITED

Second Defendant

Continued…

Hearing: 25 October 2023

Appearances:

S J Fraser for the plaintiff

R B Hucker for the first, second and fifth defendants N P Tetzlaff and D R Lang for the sixth defendants

Judgment:

26 October 2022

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 26 October 2023 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SEREPISOS and LAMBROS SEREPISOS v BLACK ROBIN EQUITY LIMITED [2023] NZHC 2996 [26
October 2022]

AND

AND

WINDSOR BRE LIMITED

Third Defendant

DAVID SHAW WIGMORE
Fourth Defendant

SHAUN JAMES GLASGOW
Fifth Defendant

DARREN IAN GANNON, ADELE GANNON and SMITH AND PARTNERS TRUSTEE CO. LIMITED

Sixth Defendants

BRP PROJECTS LIMITED

Third Party

[1] The plaintiffs apply for an interim injunction to restrain the sixth defendants (the mortgagees) from exercising their power of sale, as mortgagees, over a property at 91 Nevay Road, Miramar, Wellington (the property). The mortgagees oppose the application.

[2] The plaintiffs originally applied for an interim injunction in April 2023. In May 2023, the plaintiffs informed the Court that the application was no longer urgent and asked that it sit on the file, with leave to bring it back on at short notice. I made a direction to that effect.

[3] The plaintiffs renewed their application by filing an amended application on 10 October 2023. Regrettably, the renewed and amended application received its first call only yesterday morning in the Duty Judge list. Further, the property is listed for sale by auction tomorrow, at 12 pm on 27 October 2023. The plaintiffs wish to enjoin the mortgagees from, among other things, proceeding with that auction.

[4] Given the tight timeframe, I heard the application at the conclusion of the Duty Judge list yesterday. I record that the tight timeframe was in part attributable to the plaintiffs’ inaction. On 28 August 2023, the mortgagees sent a letter to the plaintiffs advising that they intended to continue the process of the mortgagee sale. They said they anticipated the plaintiffs may wish to bring their application for a interim injunction back before the Court. The mortgagees asked the plaintiffs to advise whether they intended to do so and, if so, to propose a timetable for the application. The mortgagees asked for a response by 31 August 2023 (a reasonable time in the circumstances). The plaintiffs did not respond substantively until renewing their application earlier this month. In the meantime, the mortgagees had taken further steps to progress a sale of the property.

Factual background

[5] The plaintiffs previously owned the property that is at issue. It has been the home of…

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: [2023] NZHC 2996
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case before the Court involves an application by Eleftherios Serepisos and Lambros Serepisos, as Trustees of The JDS Family Trust, and Eleftherios Serepisos as an individual, against Black Robin Equity Limited and others, seeking an interim injunction to prevent the sale of a property by certain mortgagees. The primary dispute revolves around the validity of the mortgagees' power of sale and whether the plaintiffs have an equitable interest in the property, which was sold by the plaintiffs to Nevay Nominees Ltd in 2021. The mortgagees, who provided a loan secured by a mortgage on the property, argue that they have the right to exercise their power of sale, while the plaintiffs contend that there are significant issues that challenge the validity of this sale.

The legal issues before the Court included whether the plaintiffs had established a serious question to be tried regarding the validity of the mortgagees' power of sale. The Court needed to determine if the plaintiffs' claims, such as the alleged failure to serve a notice under the Property Law Act and the claim that the interest and fees charged were oppressive, could justify the grant of an interim injunction. Additionally, the Court had to consider whether the plaintiffs' equitable interest in the property, if any, could challenge the mortgagees' right to exercise their power of sale.

In its judgment, the Court held that the plaintiffs had not demonstrated a serious question to be tried that would justify an interim injunction. The Court found that the plaintiffs' claims did not challenge the validity of the mortgage itself or the mortgagees' right to exercise their power of sale. The Court noted that the plaintiffs' equitable interest, if any, did not impugn the validity of the mortgage granted to the mortgagees, and that any issues regarding the service of notices under the Property Law Act would only result in damages and not prevent the exercise of the power of sale. Consequently, the Court concluded that the balance of convenience and the overall justice of the case did not warrant the grant of an interim injunction.

The Court declined the plaintiffs' application for an interim injunction and ordered the plaintiffs to pay costs to the mortgagees on a provisional 2B basis, with an opportunity for memoranda if the quantum of costs could not be agreed upon.

Orders