PARNELL PROPERTY INVESTMENTS LIMITED V BANK OF NEW ZEALAND HC AK CIV-2010-404-7186

PARNELL PROPERTY INVESTMENTS LIMITED V BANK OF NEW ZEALAND HC AK CIV-2010-404-7186

The court granted summary judgment to BNZ: (a) judgment against Julie Alexander and Stephen Osborn (as trustees and Julie personally) under the 7 December 2007 guarantee for a minimum sum of $5,460,158.99 (with BNZ able to prove a higher sum up to the guarantee limit), with interest on the $450,000 deposit from 27 May 2007 at statutory rates and solicitor-client costs under the guarantee; (b) summary judgment against Stephen Osborn dismissing his tort claims as having no reasonable cause; (c) the possession application was adjourned pending production of the original December 2007 consent letter purportedly from the bank.

Citation
openlaw-16ab1b29_8821_435f_b2e1_e10a7daa6dfa.pdf
Parties
First Plaintiff / First Defendant (in Related Proceeding; in Liquidation): Parnell Property Investments Limited; Second Plaintiff (discontinued) / Second Defendant (in Related Proceeding): St Stephens Investments Limited (in liquidation); Third Plaintiff / Fourth Defendant: Stephen Osborn; Defendant / Plaintiff (in Related Proceeding): Bank of New Zealand; Defendant / Third Defendant: Fifer Residential Ltd; Defendant / Fourth and Fifth Defendant: Julie Margaret Alexander
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 January 2012
Procedural Posture
Civil: Summary Judgment, Possession and Strike Out Applications Arising From Banking Facilities and Guarantees / Hearing on Summary Judgment and Strike Out; Judgment Delivered With Orders and Interlocutory Directions
Outcome
Judgment for Bank of New Zealand: (1) summary judgment against Julie Margaret Alexander and Stephen Osborn (as trustees of the Alexander Family Trust and Julie personally) on the 7 December 2007 guarantee for a minimum of NZD 5,460,158.99; (2) summary judgment against Stephen Osborn in CIV-2010-404-7186 dismissing...
Legal Topics
Guarantee Enforcement, Mortgagee Power of Sale and Vacant Possession, Alleged Unauthorised Bank Transfers, Inducing Breach of Contract, Unlawful Means / Interference With Trade, Consent to Lease Binding a Mortgagee, Summary Judgment and Strike Out Procedure, Illegality
Contract Tort Property Law Banking Law Insolvency Law Equity Guarantee Enforcement Mortgagee Power of Sale and Vacant Possession +6 more

Case Brief

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Parties

Parnell Property Investments Limited

First Plaintiff / First Defendant (in Related Proceeding; in Liquidation)

St Stephens Investments Limited (in liquidation)

Second Plaintiff (discontinued) / Second Defendant (in Related Proceeding)

Stephen Osborn

Third Plaintiff / Fourth Defendant

Bank of New Zealand

Defendant / Plaintiff (in Related Proceeding)

Fifer Residential Ltd

Defendant / Third Defendant

Julie Margaret Alexander

Defendant / Fourth and Fifth Defendant

Procedural Posture

Civil: Summary Judgment, Possession and Strike Out Applications Arising From Banking Facilities and Guarantees / Hearing on Summary Judgment and Strike Out; Judgment Delivered With Orders and Interlocutory Directions

Legal Issues

  1. 1 Whether four transfers on 30 April and 1 May 2007 amounting to $1,606,000 were unauthorised and effect on the bank's claims
  2. 2 What is the bank's recoverable amount under the 7 December 2007 guarantee
  3. 3 Whether the bank consented to the lease to Fifer Residential Ltd thus binding the bank and preventing possession/sale free of the lease

Ratio Decidendi

The court granted summary judgment to BNZ: (a) judgment against Julie Alexander and Stephen Osborn (as trustees and Julie personally) under the 7 December 2007 guarantee for a minimum sum of $5,460,158.99 (with BNZ able to prove a higher sum up to the guarantee limit), with interest on the $450,000 deposit from 27 May 2007 at statutory rates and solicitor-client costs under the guarantee; (b) summary judgment against Stephen Osborn dismissing his tort claims as having no reasonable cause; (c) the possession application was adjourned pending production of the original December 2007 consent letter purportedly from the bank.

Court Disposition

Judgment for Bank of New Zealand: (1) summary judgment against Julie Margaret Alexander and Stephen Osborn (as trustees of the Alexander Family Trust and Julie personally) on the 7 December 2007 guarantee for a minimum of NZD 5,460,158.99; (2) summary judgment against Stephen Osborn in CIV-2010-404-7186 dismissing...

Orders

  • Judgment for Bank of New Zealand against Julie Margaret Alexander and Stephen Osborn (as trustees of the Alexander Family Trust and Julie personally) under the 7 December 2007 guarantee for NZD 5,460,158.99 as a minimum recoverable sum
  • Bank of New Zealand may adduce further evidence to prove a higher recoverable amount up to the guarantee limit (NZD 6,600,000 plus permitted additional sums) after reconstitution of the 00 account