Westpac New Zealand Ltd v David Theunissen Limited

[2012] NZHC 2486

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2012-470-723 [2012] NZHC 2486

BETWEEN  WESTPAC NEW ZEALAND LTD Plaintiff

ANDDAVID THEUNISSEN LIMITED First Defendant

ANDDAVID PAUL THEUNISSEN AND BENJAMIN PAUL THEUNISSEN Second Defendants

Hearing:         (on the papers)

Counsel:         M V Robinson and E C Gellert for Plaintiff

Judgment:      25 September 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 25 September 2012 at 7.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Simpson Grierson, Private Bag 92518, Auckland

WESTPAC NEW ZEALAND LTD V DAVID THEUNISSEN LIMITED HC TAU CIV 2012-470-723 [25

September 2012]

Introduction

[1]      On  7  September  2012,  Woodhouse J  issued  an  interim  injunction,  on  a without  notice  application  by Westpac  New  Zealand  Ltd  (Westpac),  restraining David Theunissen Ltd, Mr David Theunissen and Benjamin Paul Theunissen from selling, damaging or removing all or any fixtures and fittings from 7 Glenrowan Road, Matamata.  The order also prohibited those defendants from allowing all or any fittings and fixtures to be sold, damaged or removed from the premises.

[2]      Westpac has a mortgage over the property.  At the time the injunction was sought, a mortgagee sale had been scheduled for 26 September 2012 a 1pm.  It has, subsequently, been postponed.

[3]      Yesterday, Westpac sought further orders on a without notice basis, on the grounds that Mr David Theunissen had removed items from the property and caused damage to it, after service of the interim injunction.   I declined initially to make orders.  I now have the benefit of a further memorandum from counsel on points that I raised in a Minute issued earlier today.

[4]      Affidavits from Ms Schuler (a licensed salesperson employed by the real estate agency engaged for the purpose of selling the property) and Mr Connolly (a security officer employed by Armourguard Security Ltd, who has been monitoring the  property for Westpac)  satisfies  me  that  Mr  David  Theunissen  has  removed property of the type covered by the injunction and has caused damage to internal areas. All of that activity diminishes the value of the property and may cause further losses to Westpac, as mortgagee.

[5]      Ms Schuler also referred to earlier comments from Mr David Theunissen to the effect that he intended to remove other items from the property.  That was said before the injunction issued.  What has happened since evidences an intention on his part to continue with that strategy.

[6]      The three substantive orders sought at present are:

(a)      An order granting Westpac access to and possession of the Matamata property;

(b)An order permitting the Police to use reasonable force to remove Mr David Theunissen and any other person in the property, in the event that they do not leave peaceably when requested;

(c)       An arrest order, in response to the breach of the injunction.

[7]      Westpac  has  not  yet  issued  substantive  proceedings  for  judgment  and possession of the property.   I am informed that they will be filed no later than Thursday 27 September 2012, with a copy being provided to the Court by facsimile tomorrow.

Application for possession

[8]      I am aware of no jurisdiction to issue an interim order for possession.  While a mortgagee will generally obtain an order for possession as of right, a proceeding must be on foot and a final order made.

[9]      Counsel  for  Westpac  referred  me  to  r 7.53  of  the  High  Court  Rules. However, that does not deal specifically with an interim order for possession; rather, it deals generally with interlocutory injunctions.   Of significance is the fact that r 17.3(1)(d) refers to the making of a possession order as a means by which a judgment may be enforced.  No judgment has yet been given.

[10]     I decline to make a possession order.

Removal order

[11]     Likewise, I am aware of no jurisdiction for the Court to authorise Police to use reasonable force to remove an occupant from a property, in these circumstances. No authority has been cited in counsel’s memorandum in support of the application. I am not prepared to make that order.

Arrest order

[12]     A writ of arrest may be granted in a case where a party has been served with an original Court order and has failed to comply with it. A Judge may issue an order arresting the non complying party, on the application of a party entitled to the benefit of it.[1]

[1] High Court Rules, r 17.84(2).

[13]     In order to obtain an arrest order the applicant must demonstrate:[2]

[2] See Soljan v Spencer [1984] 1 NZLR 618 (CA) and Ferrier Hodgson v Siemer HC Auckland

CIV 2005-404-1808, 9 July 2007 (Potter J) at para [48] and following.

(a)       The terms of the original order were clear and unambiguous

(b)      The party sought to be arrested was served with the original order and

(c)       That party has not complied with the order, in a manner which shows wilful and inexcusable disregard of it.

[14]     While the remedy is civil in nature, because it affects the liberty of the subject  it  is  necessary  for  an  applicant  to  prove  those  three  criteria  beyond reasonable doubt.[3]

[3] New Zealand Guardian Trust Co Ltd v parker (1992) 6 PRNZ 30 at 31 and Ferrier Hodgson v

Siemer HC Auckland CIV 2005-404-1808, 9 July 2007 (Potter J) at para [50].

[15]     The evidence to which I have referred satisfies me beyond reasonable doubt that  Mr David Theunissen  has  been  served  with  the order  and  has  deliberately disobeyed it.   That disobedience can properly be described as contumelious.   The terms of the order were clear and unambiguous.   In my view, an order for arrest should issue to mark the deliberate disobedience of the order, with the consequential effect of protecting Westpac’s interest.

Result

[16]     I make an arrest order, to be issued in Form E9 of the High Court Rules.[4]

The Sheriff shall arrange to have Mr David Theunissen arrested and brought before

this Court at 9.30am on Thursday 27 September 2012 and to keep him in custody until that time.

[4] High Court Rules, r 17.83(2).

[17]     A copy of this judgment shall be served on Mr David Theunissen on arrest. He will be expected to explain his breaches to the Court when he appears on 27

September.   How he is dealt with at that time will depend upon his proposals to

purge his contempt.

P R Heath J

Delivered at 7.00pm on 25 September 2012