Powell v K 2 Investment Group Limited

[2022] NZHC 244

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-191

[2022] NZHC 244

BETWEEN

RICHARD OWEN POWELL

Plaintiff/Counterclaim Defendant

AND

K 2 INVESTMENT GROUP LIMITED

First Defendant/First Counterclaim Plaintiff

AND

K2 INVESTMENT GROUP AUSTRALIA PTY LIMITED

Second Defendant/Second Counterclaim Plaintiff

AND

GABOR KEMENY

Third Defendant/Third Counterclaim Plaintiff

Counsel:	S D Campbell for Plaintiff/Counterclaim Defendant
Judgment:	22 February 2022
(Determined on the papers)

JUDGMENT OF OSBORNE J

(supplementary to [2021] NZHC 2253)

This judgment was delivered by me on 22 February 2022 at 10.45 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

POWELL v K 2 INVESTMENT GROUP LIMITED [2022] NZHC 244 [22 February 2022]

Judgment for enforcement

[1]                 By my judgment delivered on 30 August 2021, I ordered (amongst other orders):1

… there is a declaration that Powell is entitled to specific performance of K2 New Zealand’s agreement under clause 5(a) of the loan agreement to execute a mortgage over the secured properties in favour of Powell, reserving leave to Powell to apply for the Court’s further assistance if such mortgage is not provided to Powell;

[2]                 The term “K2 New Zealand” was used in the judgment to refer to the first defendant, K 2 Investment Group Ltd.

[3]Clause 5(a) of the loan agreement (as referred to in the order) reads:2

As security for the Principal Sum, interest and all other amounts payable by the Borrower under this Agreement, the Borrower agrees that in the event the Borrower defaults in payment of the Principal Sum or interest, or in the observance or performance of any other covenants expressed or implied in this Agreement, the Borrower will immediately grant and execute in favour of the Lender a mortgage over the Borrower’s 50% equitable share of the properties described in Schedule C; and the Borrower acknowledges that the Lender shall be entitled to lodge a caveat against the titles to those properties to protect its interest as equitable mortgagee over the Borrower’s share of those properties.

[4]                 In the loan agreement, the “Lender” is Mr Powell and the “Borrower” is K 2 Investment Group Ltd.

The Court’s further assistance

[5]                 Pursuant to the leave reserved to Mr Powell in relation to specific performance, Mr Powell seeks the Court’s assistance in relation to the execution of the mortgage required from K 2 Investment Group Ltd.

[6]                 Since the delivery of the judgment, Mr Powell, through his lawyers, has made a repeated request of K 2 Investment Group Ltd to register a mortgage in favour of Mr Powell to protect Mr Powell’s interest as identified in the loan agreement, namely a 50 per cent equitable interest in the property legally described by the Identifiers

1      Powell v K 2 Investment Group Ltd [2021] NZHC 2253 at [277](d).

2      Powell v K 2 Investment Group Ltd, above n 1, at Schedule A.

545266 to 545314 (Hawkes Bay Registry) and the property legally described as Identifier HB23/146.

[7]                 In particular, Mr Campbell seeks an order authorising the Registrar of this Court to sign the necessary documents on behalf of K 2 Investment Group Ltd.

Discussion

[8]                 Where it is necessary or expedient for the purpose of giving effect to court orders by reason of the failure of a liable party to execute documents, the Court will authorise a Registrar to sign documents on behalf of the liable party.

[9]                 I am satisfied, having regard to the time K 2 Investment Group Ltd has had to register its mortgage and has failed to do so, that it is appropriate to authorise the Registrar to sign the necessary documents.

Order

[10]I order:

(a)the Registrar of the High Court at Christchurch is authorised to sign on behalf of K 2 Investment Group Ltd such documents as are reasonably necessary  to  facilitate  the   execution   of   the   mortgage/s   which K 2 Investment Group Ltd agreed to grant and execute in favour of Mr Powell in their loan agreement dated 7 September 2012;

(b)for this purpose, Mr Powell’s solicitor is to file under cover of a memorandum for the Registrar’s attention the original document or documents of which Mr Powell seeks execution; and

(c)the costs and disbursements of Mr Powell’s request for this assistance are reserved.

Osborne J

Solicitors:

Wynn Williams & Co, Christchurch Anthony Harper, Christchurch