ANZ BANK NEW ZEALAND LIMITED (formerly ANZ NATIONAL BANK LIMITED) v CALVERT [2013] NZHC 1624

ANZ BANK NEW ZEALAND LIMITED (formerly ANZ NATIONAL BANK LIMITED) v CALVERT [2013] NZHC 1624

The defendant failed to establish an arguable defence: the 2007 guarantee, though not executed as a deed, was intended and interpreted as a continuing enforceable contractual guarantee supported by consideration and extending to future advances; s122 PLA did not require notice to the defendant in respect of the CFNZ mortgage because he was not a covenantor of that mortgage; accordingly there was no miscarriage of justice and the application to set aside summary judgment was dismissed.

Citation
[2013] NZHC 1624
Parties
Plaintiff/judgment Debtor: ANZ Bank New Zealand Limited (formerly ANZ National Bank Limited); Defendant/judgment Debtor: John Barry Calvert
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 July 2013
Procedural Posture
Application to Set Aside Summary Judgment / High Court Hearing on Application to Set Aside Summary Judgment; Judgment Delivered on Application
Outcome
Application to set aside summary judgment dismissed
Legal Topics
Summary Judgment (setting Aside), Guarantee Enforceability, Execution of Deeds, Consideration for Guarantees, Property Law Act 2007 S122 (mortgagee Sale Notices), Mortgagee Sale Procedure
Contract Law Property Law Civil Procedure Banking Law Guarantees and Indemnities Summary Judgment (setting Aside) Guarantee Enforceability Execution of Deeds +3 more

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Parties

ANZ Bank New Zealand Limited (formerly ANZ National Bank Limited)

Plaintiff/judgment Debtor

John Barry Calvert

Defendant/judgment Debtor

Procedural Posture

Application to Set Aside Summary Judgment / High Court Hearing on Application to Set Aside Summary Judgment; Judgment Delivered on Application

Legal Issues

  1. 1 Whether the 2007 guarantee was unenforceable because it was not executed as a deed
  2. 2 Whether lack of independent legal advice or improper witnessing gave rise to an arguable defence
  3. 3 Whether consideration existed to support the guarantee in respect of the 2009 advances

Ratio Decidendi

The defendant failed to establish an arguable defence: the 2007 guarantee, though not executed as a deed, was intended and interpreted as a continuing enforceable contractual guarantee supported by consideration and extending to future advances; s122 PLA did not require notice to the defendant in respect of the CFNZ mortgage because he was not a covenantor of that mortgage; accordingly there was no miscarriage of justice and the application to set aside summary judgment was dismissed.

Court Disposition

Application to set aside summary judgment dismissed

Orders

  • Summary judgment entered 11 December 2012 remains in force
  • Parties to confer on costs; if unable to agree each party to file a memorandum not exceeding four pages within 10 working days of judgment