ANZ NATIONAL BANK LIMITED V AJ TAYLOR AND LJ REITHOFER-TAYLOR HC WN CIV-2011-485-880

ANZ NATIONAL BANK LIMITED V AJ TAYLOR AND LJ REITHOFER-TAYLOR HC WN CIV-2011-485- 880 19 July 2011IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-880BETWEEN ANZ NATIONAL BANK LIMITEDPlaintiffAND ANDREW JOHN TAYLOR AND LINDAJOAN REITHOFER-TAYLORDefendantsHearing: 19 July 2011(Heard at Wellington)Counsel: Mr Hamilton - Counsel for the PlaintiffNo appearance for the DefendantsJudgment: 19 July 2011ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: Gibson Sheat, Lawyers, PO Box 2966, Wellington[1] Before the Court is an application for summary judgment by the plaintiff against the defendants.[2] Although there is no formal Notice of Opposition to the present application, yesterday 18 July 2011 the Court received a letter from a Mr Clive Gardner (the Gardner letter), a lawyer of Mount Maunganui, with certain attachments on behalf of the defendants. This set out certain information regarding the present proceeding and enclosed a letter dated 8 July 2011 from the first-named defendant.[3] The background to this matter involved the defendants borrowing a sum of $1,872,500.00 on 25 August 2006 from the plaintiff bank. Security for this loan was by way of first registered mortgages over 3 apartments situated at 1 Marine Parade, Paraparaumu Beach.[4] It appears the defendants fell into default under their loan arrangements between October 2008 and June 2009 and, following the issue of a s 119 Property Law Act Notice which went unremedied, the plaintiff exercised its right as mortgagee to sell the three apartments in question.[5] Following the sale of the apartments the shortfall of the loan outstanding from the defendants amounted to $1,044,310.79.[6] The plaintiff has apparently demanded payment of this shortfall from the defendants but the defendants have not paid this sum. The current proceedings are issued seeking summary judgment for this shortfall amount plus interest and costs.[7] From the Gardner letter received by the Court and the accompanying letter from the first-named defendant, it is apparent that the defendants do not intend to provide any formal Notice of Opposition or defence to the present application. Instead, they put before the Court certain matters which they ask are taken into consideration here. Those matters appear to involve general complaints as to the sale amounts achieved by the plaintiff for the mortgagee sale of the properties in question. It is presumed that this is effectively a complaint pursuant to the provisions of s 176 of the Property Law Act 2007.[8] On this, however, the sworn evidence before the Court regarding the mortgagee sale of the apartments is contained in the affidavit of Alison Cherie Mannix-Kerr dated 14 April 2011 filed on behalf of the plaintiff. In that affidavit asan Exhibit at "AMK11" is a valuation dated 17 December 2009 from Robertson Valuations Ltd of the properties in question. This indicates that two of the three properties were sold for an amount at or exceeding the forced sale valuation figures provided for by the valuers. The third property was sold for an amount slightly less than the forced sale value.[9] There was no other formal evidence before the Court regarding what might be appropriate for sale values of these properties I am satisfied that the material provided to the Court on behalf of the defendants (which also seems to include part of the Robertson Valuations Ltd valuation) does not in any way suggest that the plaintiff as mortgagee has not fulfilled its obligations in terms of s 176 Property Law Act 2007 when selling the apartments.[10] That said, there is effectively no defence from the defendants before the Court to the present summary judgment application. Certainly, there is no formal Notice of Opposition or affidavit filed in terms of r 12.9 High Court Rules as I have indicated above and the Gardner letter and the other material provided to the Court at the eleventh hour on behalf of the defendants does not, in my view, alter the position.[11] That said, the plaintiff in its application for summary judgment, in my view, has satisfied the requirement in the High Court Rules to establish that the defendants have no defence to the claim brought by the plaintiff.[12] Summary judgment is therefore granted to the plaintiff against the defendants, Andrew John Taylor and Linda Joan Reithofer-Taylor, in terms of the plaintiff's statement of claim and Memorandum from counsel dated 18 July 2011 for the following sums:(a) The amount claimed in the plaintiff's statement of claim $1,077,993.85(b) Interest at the contractual rate of 6.45% p.a. from3 March 2011 to 18 July 2011 (138 days at $185.97per day) $ 25,663.86[13] In addition, costs are awarded to the plaintiff against the defendants as set out at para 3 of the 18 July 2011 Memorandum from counsel for the plaintiff totalling $7,332.00 together with disbursements also set out in that Memorandum totalling $1,448.70.[14] The total amount for which summary judgment is therefore ordered against the defendants is $1,112,438.30.'Associate Judge D.I. Gendall'