Waimauri Limited v Powell Junior Limited - [2025] NZHC 332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001694 [2025] NZHC 332

UNDER Part 18 of the High Court Rules 2016

AND UNDER

Section 137 of the Property Law Act 2007

BETWEEN

WAIMAURI LIMITED

Plaintiff

AND

POWELL JUNIOR LIMITED

Defendant

Hearing: 19, 20, 21, 22, 23, and 26 August 2024

Appearances:

M J W Lenihan for Plaintiff

J R Harvey for the Defendant (Self-represented)

Judgment:

28 February 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 28 February 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..
Registrar/Deputy Registrar

Solicitors: Brown Partners Lawyers, Auckland Copy to J Harvey

WAIMAURI LTD v POWELL JUNIOR LTD [2025] NZHC 332 [28 February 2025]

Table of contents

Para No

Background[3]

PJL Loan[11]
Dealings after the loan agreement[16]
Glenvale Holdings Ltd Loan Agreement[24]
The $162,500 “top up”[34]
Continued dealings[38]
The Exit Agreement[40]
Liquidation of GHL and subsequent settlement[42]
Cross-lease title and substitution of the mortgage[44]
Notice of default[45]

PJL’s position[49]

Was the PLA Notice valid? [66]

The $162,500 top up[70]

Payments under the GHL Loan[73]

Was Waimauri estopped from enforcing the sums due because of the Exit Agreement? [75]

Elements of estoppel[78]
Analysis[79]
26 April 2018 email[83]

Reopening of contract under the CCCFA [95]

PJL’s pleading[98]

Circumstances surrounding entry into the PJL Loan[106]

Analysis of circumstances around entry into the PJL Loan[121]

The terms of the contract[127]

Consumer credit contract “in substance”[131]

Oppressive exercise of powers[136]

Conclusion on whether to reopen the contract[137]

Result[138]

[1] The applicant, Waimauri Ltd (Waimauri), has a registered mortgage over a residential property at 2/35 Powell Street, Avondale (the property). It seeks an order for possession under s 137(1)(c) of the Property Law Act 2007 (the PLA) on the basis that the mortgagor, Powell Junior Ltd (PJL) has failed to remedy defaults, namely failure to pay sums due, set out in a notice issued under s 119 of the PLA (the PLA Notice).

[2] PJL is the registered owner of the property. It opposes the application on the basis that the PLA Notice was invalid because PJL did not owe the amount demanded. It brings a counterclaim seeking orders under s 127 of the Credit Contracts and Consumer Finance Act 2003 (CCCFA), on the grounds that the loan agreement between the parties (the PJL Loan) was oppressive. Alternatively, it submits Waimauri is estopped from exercising its powers under the mortgage.

Background

[3] Waimauri is a property financier. All but one share in the company is owned by Mr Timothy Edney, who is the sole director. There is only one other staff member, Mr Josh Penny, who managed the PJL Loan.

[4] Mr Jason Harvey is the sole director of PJL. He and his wife are equal shareholders. PJL was incorporated for the purposes of obtaining a loan from Waimauri in the circumstances outlined below.

[5] Mr Harvey’s then brother-in-law, Mr Peter Chevin, was a property developer. Mr Chevin had used Waimauri…

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: [2025] NZHC 332
Decision Date: 28 February 2025

CaseChat Overview and Summary

Waimauri Limited sought an order for possession of a property under the Property Law Act 2007 due to Powell Junior Limited's failure to remedy defaults. Powell Junior Limited opposed the application, arguing the notice was invalid, and counterclaimed for reopening the loan under the Credit Contracts and Consumer Finance Act 2003, alleging the loan was oppressive. Anderson J examined whether the notice was valid, if Waimauri was estopped from enforcing the sums due, and whether the loan should be reopened under the Credit Contracts and Consumer Finance Act 2003. The court found the notice was valid, Waimauri was not estopped from enforcing the sums due, and the loan should not be reopened. Anderson J ordered possession in favour of Waimauri and granted Waimauri its costs.

Orders