ANZ BANK NEW ZEALAND LIMITED V PETER WILLIAM MAWHINNEY HC AK CIV 2013-404-002356

ANZ BANK NEW ZEALAND LIMITED V PETER WILLIAM MAWHINNEY HC AK CIV 2013-404-002356 [9 May 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-002356[2013] NZHC 1050UNDER Section 143 of the Land Transfer Act 1952IN THE MATTER OF Caveat 9365757.1BETWEEN ANZ BANK NEW ZEALAND LIMITEDApplicantAND PETER WILLIAM MAWHINNEYRespondentHearing: 9 May 2013Appearances: L A O'Gorman/A L Williams for the ApplicantP W Mawhinney in person, the RespondentJudgment: 9 May 2013ORAL JUDGMENT OFASSOCIATE JUDGE CHRISTIANSENThis judgment was delivered by me on09.05.13 at 4:30 pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors/Counsel:A Williams/L O'Gorman, Buddle Findlay, Auckland - anita.williams@buddlefindlay.com/laura.ogorman@buddlefindlay.comCopy to: Mr Mawhinney – pwmh@xtra.co.nz[1] The applicant (ANZ Bank) applies to remove Mr Mawhinney's caveat over aproperty belonging to Mr Barry Hart. The ANZ Bank is the registered mortgagee of the property. Its mortgage was registered on 17 October 2008.[2] The property in question is subject to a mortgagee sale process. On 27 November 2012 in exercise of its power of sale as mortgagee, ANZ Bank entered into a sale and purchase agreement for the property.[3] On 6 May 2013, as part of the mortgagee sale process, ANZ Bank's solicitorsobtained a guaranteed search copy of the certificate of title of the property. That showed that Mr Mawhinney lodged a caveat against the property on 11 April 2013. The caveat claims an interest pursuant to an alleged agreement to mortgage dated 10 February 2004 between Mr Mawhinney as mortgagee and Mr Hart as mortgagor.[4] On 7 May 2013 ANZ Bank filed this application for removal of Mr Mawhinney's caveat on a Without Notice basis. In support there has been filed anaffidavit by the senior manager of the Bank. Copies of the application, affidavit insupport, and counsels' submissions were, on 7 May 2013 at 3:18pm, emailed to Mr Mawhinney.[5] When the file was referred for my consideration I determined it should be called at 3:00pm today. I directed ANZ Bank's solicitors inform Mr Mawhinney ofthat arrangement.[6] Mr Mawhinney is a bankrupt. He having been adjudicated bankrupt on 22 July 2010.[7] When the matter was called before me today Mr Mawhinney appeared and provided the Court with an outline of his submissions in opposition. Those stated:(a) Mr Mawhinney is a trustee of the Waitakere Forest Land Trust and he registered a caveat in that capacity.(b) The caveatable interest is an agreement to mortgage under a joint venture agreement to subdivide certain land including the property in question, by which Mr Hart and the Trust were to supply land upon which the Trust was to undertake a subdivision. The agreement to mortgage was to secure the repayment to the Trust of subdivision costs and a share in the proceeds of sale from the subdivision.(c) ANZ Bank's is invalid, because:(i) It is not signed;(ii) There is no contract in writing for the disposition of the land by way of mortgage, and it is therefore not enforceable pursuant to s 24 Property Law Act 2007;(iii) It does not contain the information required by s 101 Land Transfer Act 1952 including the nature of the debt secured by the mortgage;(iv) It was not charged to secure any loan agreement or loan or guarantee, by the text of the paper authority and instructions given by both the applicant and Mr Hart to the solicitor who registered the mortgage.(v) Since it is registered it is indefeasible, but it secures nothing.(vi) Because the applicant's mortgage is valueless, the balance ofconvenience lies with the respondent.[8] Upon hearing Mr Mawhinney and counsel for the ANZ Bank, I made orders:(a) There is an order lapsing caveat 9365757.1 with immediate effect.(b) It is in order for the Court to seal the order in terms of the draft submitted for that purpose.(c) Costs be reserved.Considerations[9] The High Court has already determined the Bank is entitled to possession of the property and to exercise its mortgagee power of sale. 1[10] The Bank had no knowledge of Mr Mawhinney's claim of an alleged interestnor has such alleged interest been the subject of reference in the extensive litigationconcerning the Bank's mortgagee sale of this property. The Bank has not consentedto any such interest being granted.[11] The Bank's registered mortgage has priority over an undisclosed registeredagreement to mortgage, as Mr Mawhinney claims he has. Also the interests of thepurchaser under the Bank's mortgagee sale prevail over any interests of MrMawhinney. Mr Mawhinney appeared to concede that the ANZ Bank's registeredmortgage prevailed over his claim of an unregistered interest. Instead he relied upon claims that the ANZ Bank mortgage was invalid.[12] The Bank brings its present application under s 143 of the Land Transfer Act for the immediate removal of the caveat. The Court is empowered to make such an order on a without notice basis if it considers it appropriate. In this case the Court chose to adopt the Pickwick procedure.[13] Claims of an invalid mortgage are baseless. In the process of the registering of Mr Hart's mortgage to the Bank, the Bank was vested with the authority containedby the mortgage terms.[14] In response to submissions that the High Court, Court of Appeal and Supreme Court have previously endorsed the ANZ Bank's rights to act as it has pursuant to themortgage Mr Mawhinney responds that he ought to be given an opportunity to pursue the point of invalidity notwithstanding – because he says it has not been argued previously. But Mr Mawhinney is not the mortgagor of the ANZ Bank's1 Hart & Ors v ANZ Bank New Zealand Limited [2013] NZCA 94.mortgage. Clearly it is not appropriate to permit Mr Mawhinney to pursue legal points in effect on behalf of Mr Hart when Mr Hart has already had that full opportunity.[15] Mr Mawhinney told the Court that he had been in discussions with Mr Hart since September 2012. Yet, he has left it until very recently i.e. when the mortgagee sale settlement was imminent to advance these matters not only for himself but it appears also on behalf of Mr Hart.[16] Considerations of balance of convenience do not favour Mr Mawhinney.[17] When I informed Mr Mawhinney of the orders the Court would make he requested the Court to grant a stay. I advised Mr Mawhinney that that request would be refused.Associate Judge Christiansen