Woodhill Black Sand Limited v Hart

[2012] NZHC 2326

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005183 [2012] NZHC 2326

BETWEEN  WOODHILL BLACK SAND LIMITED Plaintiff

ANDBARRY JOHN HART Defendant

Hearing:         10 September 2012

Appearances: E St John for Plaintiff

No appearance for Defendant

Judgment:      10 September 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Palmer & Associates, Auckland  [email protected]

Copy to:            E St John, Auckland  [email protected]

B J Hart [email protected]

WOODHILL BLACK SAND LTD V HART HC AK CIV-2012-404-005183 [10 September 2012]

[1]      This is an application on notice for an order that the defendant, his servants and agents immediately vacate the property described as Lot 4, DP 162353 identifier NA 97D/829 otherwise known as the Parker Block, together with related orders.

[2]      The applicant for the orders is now the registered proprietor of the property. The  previous  owner  was  the  defendant  Mr  Hart.    The  plaintiff  purchased  the property by way of mortgagee sale from the ANZ National Bank Limited as mortgagee from Mr Hart.  The sale was due to settle on 25 June 2012.  Mr Hart and parties associated with him lodged caveats against the title to the property.  On the application of the Bank those caveats were removed by order of this Court.  Because of the delays in dealing with the issues raised by the defendant, settlement of the plaintiff’s purchase was delayed until 9 August 2012.  In the meantime the defendant moved stock on to the property and asserted a right in relation to a lease.  That right was the same right that this Court ordered could not support the caveat which the defendant had arranged to be lodged against the property.

[3]      There has been correspondence between the parties but the position is that, although the plaintiff is the purchaser and now registered proprietor of the property, the plaintiff and its agents and servants have been prevented from taking access to the property by parties who purport to act on behalf of the defendant Mr Hart.

[4]      The application before the Court initially sought other orders on an ex parte basis.   The Court made orders against the defendant not to remove certain items described in the application, including the following fixtures:  water supply system, fences and gates.

[5]      The current application has been served on the defendant.  However, there is,

in Mr St John’s submission, difficulty in relation to service of the defendant.

[6]      On the basis of the information before the Court there is no basis for any opposition to the orders now sought.  The plaintiff now owns the land and is entitled to quiet possession.

[7]      I note no notice of opposition has been filed.  There is no appearance by or on behalf of the defendant.

[8]      In the circumstances I make orders that the defendant, his servants and agents are to immediately vacate the property described as Lot 4 DP 162353 Identifier NA

97D/829 otherwise known as the Parker Block and are not to re-enter that property.

[9]      In addition there will be an order that the defendant, his servants and agents are also to immediately remove their livestock from that property.

[10]     I reserve leave to apply.

[11]     The plaintiff is entitled to costs of this application which I fix on a 2B basis. [12]     I also make an order that personal service of these orders may be dispensed

with.    Service of the orders is  to  be effected  by delivery to  the email  address [email protected].

Venning J