ASB Bank Limited v Kruger HC Hamilton CIV 2010-419-430

[2010] NZHC 969

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-000430

UNDER

IN THE MATTER OF BETWEEN

Part 12 of the High Court Rules

of an application for summary judgment

ASB BANK LIMITED

Plaintiff

AND

VERNON KRUGER First Defendant

AND

SUSANNA HELENA KRUGER Second Defendant

AND

BSN TRUSTEES LIMITED Third Defendant

Hearing:

21 June 2010

Counsel:

AL Bowater for plaintiff

Appearance:    V Kruger, first defendant and purportedly for other defendants

Judgment:      21 June 2010 at 1:00pm

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]

Solicitors:           Simpson Grierson, Private Bag 92 518, Auckland for plaintiff

And To:             V Kruger, 82 Alpha Street, Cambridge, first defendant

ASB BANK LTD V KRUGER  HC HAM CIV 2010-419-000430  21 June 2010

[1]      The plaintiff seeks summary judgment.

[2]      A notice of opposition was filed by the first defendant and purports to be filed on behalf of other defendants.   Mr Kruger does not have authority to file documents on behalf of other parties.   By analogy, I adopt the reasoning in Time Ticket International Ltd v Broughton.[1]

[1] Time Ticket International Ltd v Broughton [1996] 2 NZLR 176, (1996) 9 PRNZ 305.

[3]      The plaintiff’s counsel advises me, firstly, by memorandum and then orally, that what was sought was:

a)        An immediate judgment for possession of the secured properties in accordance with the statement of claim; and

b)Directions as to the disposal of the remaining issue in relation to the summary judgment application.

In that regard, the matter clearly should wait until some action is taken in relation to potential mortgagee sales of the secured properties.  It would only be necessary to proceed with summary judgment if there a shortfall.

[4]      This is an application for summary judgment.   The correct approach to an application for summary judgment by a plaintiff was recently summarised by the Court of Appeal in Krukzeiner v Hanover Finance Ltd[2] where the court said:

[2] Krukziener v Hanover Finance Ltd [2008] NZCA 187 at 26.

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11

PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a

robust and realistic approach where the facts warrant it: Bilbie Dymock Corp

Ltd v Patel (1987) 1 PRNZ 84 (CA).

[5]      The plaintiff in effect here relies on the Property Law Act 2007, s 137(1)(c). The relevant parts of that provision are:

137     Exercise of power to enter into possession

(1)       If a mortgagee becomes entitled under a mortgage, after compliance with subpart 5, to exercise a power to enter into possession of mortgaged land or goods, the mortgagee may exercise that power by—

…

(c)applying to a court for an order for possession of the land or goods.

[6]      I have evidence of the service of the Property Law Act notice pursuant to the

Property Law Act 2007, s 119.

[7]      I have carefully considered the notice of opposition.  I cannot find any basis for opposition to the order for possession sought.   The plaintiff has a proper foundation for relief by way of an order for possession.

[8]      Accordingly I order:

a)       that the defendants give possession to the plaintiff in respect of the secured properties which are at 115 Maungakawa Road, Cambridge and at 26/37B Raleigh Street, Cambridge;

b)the application for summary judgment is otherwise adjourned to the summary judgment list at 12 noon on 13 September 2010 for the purpose of giving further directions.  That may involve directions for the filing and service of updated affidavits.  I emphasise to all parties that an appearance at that time is required;

c)       the plaintiff has been successful in part of the application at this stage and is entitled to costs.   However, as the application for summary judgment will require further consideration by the court, I reserve

costs which will be determined on the conclusion of the summary

judgment application.

JA Faire

Associate Judge