LAWES AND ANOR V BANK OF NEW ZEALAND HC AK CIV 2009-404-001594

LAWES AND ANOR V BANK OF NEW ZEALAND HC AK CIV 2009-404-001594 25 March 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-001594IN THE MATTER OF A claim under s 97 of the Property Law Act 2007 AND IN THE MATTER OF a claim under s 120(b) of the Credit Contracts and Consumer Finance Act 2003 BETWEEN SPENCER ARTHUR LAWES First Plaintiff AND SPENCER ARTHUR LAWES AND NOEL ERIC CRUMP Second Plaintiffs AND BANK OF NEW ZEALAND Defendant Hearing: 25 March 2009 Appearances: M G Locke for Plaintiffs Z G Kennedy for Defendant Judgment: 25 March 2009JUDGMENT OF KEANE JSolicitors West Auckland Law Office, Auckland Minter Ellison Rudd Watts[1] On 20 March 2009 Spencer Lawes, the settlor of a trust which owns a property at 62 Trigg Road, Whenuapai, applied for an interim injunction to prevent the mortgagor, the Bank of New Zealand, from exercising its right to sell the property. [2] $460,000 is in issue so far as BNZ is concerned. Mr Lawes has obtained fresh finance and can meet the entire liability. That, however, is contingent on his former partner co-operating. She has a notice of claim lodged against the title. She is unwilling to release it and Mr Lawes must obtain an order from the Family Court. His hope, when this application was filed, was to secure that opportunity. [3] BNZ has, however, entered into a conditional agreement for sale and purchase for $888,000 and settlement is proposed for 7 April 2009. The conditions, protect BNZ in the event that an injunction is granted and Mr Lawes' redemptive claim, or rather that of his trust, is vindicated by the Family Court or this Court. BNZ, however, is anxious to hold the settlement date. On the market as it is trending the price achieved might not be again. [4] Mr Lawes intends to apply tomorrow to the Family Court for the setting aside of the notice of claim. An instant fixture is unlikely. The last such application took a month to set down. Any fixture may be beyond the proposed settlement date. These are the reasons why, I agree, the proceeding in this Court deserves priority. [5] BNZ's notice of opposition and any affidavit are to be filed and served by 27 March 2009. Any affidavit in reply is to be by 1 April 2009. A half day fixture is to be given before 7 April 2009. But if that cannot be achieved, there will be an interim injunction, by consent, protecting all interests, restraining BNZ from completing the sale on settlement date, to continue until the fixture given. _____________ P.J. Keane J