FINANCIAL TRUST LIMITED AND ANOR V BISHOP AND ORS HC WN CIV-2006-485-2321

FINANCIAL TRUST LIMITED AND ANOR V BISHOP AND ORS HC WN CIV-2006-485-2321

The Deed of Removal and Appointment effected an absolute assignment of SRL's rights to FTL (executed in October 2003 despite a later effective date), the 28 November 2003 notice alongside subsequent deeds of variation and a later formal demand satisfied s130 notice requirements (or in the alternative there is an enforceable equitable assignment), therefore the defendants have no real defence and summary judgment is entered for Financial Trust Limited for the outstanding debt, interest and costs.

Citation
openlaw-895b8bcb_9f69_42d3_9963_2d54fcbd67d3.pdf
Parties
First Plaintiff: Financial Trust Limited; Second Plaintiff: Orange Finance Limited; First Defendant: Joan Elizabeth Bishop; Second Defendant: Donald John Bishop; Third Defendant: Emma Catherine Fursman; Fourth Defendant: David Anthony Tobin
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 April 2007
Procedural Posture
Civil (summary Judgment) / Summary Judgment Hearing and Decision
Outcome
Summary judgment for plaintiff Financial Trust Limited against each defendant
Legal Topics
Assignment of Debt, S130 Property Law Act Notice, Guarantees/enforcement, Mortgagee Sale Shortfall, Equitable Assignment, Estoppel, Deed of Variation, Summary Judgment Standard
Property Law Contract Trusts Civil Procedure Guaranty Law Assignment of Debt S130 Property Law Act Notice Guarantees/enforcement +5 more

Case Brief

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Parties

Financial Trust Limited

First Plaintiff

Orange Finance Limited

Second Plaintiff

Joan Elizabeth Bishop

First Defendant

Donald John Bishop

Second Defendant

Emma Catherine Fursman

Third Defendant

David Anthony Tobin

Fourth Defendant

Procedural Posture

Civil (summary Judgment) / Summary Judgment Hearing and Decision

Legal Issues

  1. 1 Whether SRL validly assigned loan and security documents to FTL
  2. 2 Whether defendants received valid notice of assignment under s130 Property Law Act 1952
  3. 3 Whether guarantees were validly assigned and enforceable by FTL and/or OFL

Ratio Decidendi

The Deed of Removal and Appointment effected an absolute assignment of SRL's rights to FTL (executed in October 2003 despite a later effective date), the 28 November 2003 notice alongside subsequent deeds of variation and a later formal demand satisfied s130 notice requirements (or in the alternative there is an enforceable equitable assignment), therefore the defendants have no real defence and summary judgment is entered for Financial Trust Limited for the outstanding debt, interest and costs.

Court Disposition

Summary judgment for plaintiff Financial Trust Limited against each defendant

Orders

  • Summary judgment for Financial Trust Limited against Joan Elizabeth Bishop, Donald John Bishop, Emma Catherine Fursman and David Anthony Tobin in the sum of $3,379,023.69
  • Interest at 12.5% per annum on $3,379,023.69 from 16 January 2007 to the date of judgment (3 April 2007)