BANK OF NEW ZEALAND v MATSIS [2021] NZHC 1122

BANK OF NEW ZEALAND v MATSIS [2021] NZHC 1122 [19 May 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-569[2021] NZHC 1122BETWEEN BANK OF NEW ZEALANDApplicantAND MICHAEL PETER MATSISRespondentHearing: 11 March 2021Appearances: J C Caird and L B Harrison for the applicantC F J Reid and C M Kenworthy for the respondentJudgment: 19 May 2021JUDGMENT OF ASSOCIATE JUDGE JOHNSTONIntroduction and background[1] The Bank of New Zealand sues Mr Michael Matsis pursuant to a guaranteegiven by him in support of lending arrangements between the Bank and a businesseffectively run by Mr Matsis. The Bank applies for summary judgment. Mr Matsisopposes this application.[2] Mr Matsis incorporated Zany Zeus Ltd in January 2003. By the time of theevents that form the background to this proceeding there were two other companies inthe group: Soy Organic Ltd and Zany Zeus On Wheels Ltd. The group's core businessinvolved the manufacture of specialist cheeses and other such products.[3] By late 2016 the Bank was the group's principal financier. On 10 November2016, the Zany Zeus companies and Mr Matsis entered into security arrangements tosupport pre-existing and new facilities. These included guarantees that were referredto as "interlocking". That sounds more complicated than it is. Essentially, the threecompanies and Mr Matsis each guaranteed the others' obligations to the Bank.[4] By late 2019 the Zany Zeus group was facing financial difficulties and inDecember 2019, at the group's instigation, the Bank appointed receivers, Mr John Fiskand Mr Richard Nacey of PriceWaterhouseCoopers in Wellington, over its business.[5] Between their appointment and April 2020 the receivers continued to operatethe business while they considered its future.[6] Eventually they sold the business to a consortium headed by aMr Gerald McDouall for $1,800,000. The sale and purchase transaction was settledon 3 April 2020. The assets were transferred to a company formed for the purpose bythe consortium, Zany Zeus (2020) Ltd. As an aside, Mr Matsis is apparently employedby this company.[7] The Bank's losses were crystallised by the sale, and in October 2020 itcommenced this proceeding in which it sues Mr Matsis pursuant to his guaranteeclaiming the difference between those losses and the maximum amount of theguarantee ($2,000,000), together with contractual interest and costs. Its application forsummary judgment is supported by an affidavit sworn by one of its managers,Mr Michael Williams. This is a comparatively formal document. Mr Williams doeslittle more than swear to the accuracy of the Bank's statement of claim and producethe loan and security documentation. So far as it goes, Mr Williams' primary affidavitis not controversial.[8] However, Mr Matsis says he has defences to the Bank's claim, and opposes itsapplication for summary judgment.Summary judgment applications[9] The High Court Rules provide for summary judgment in pt 12.[10] The pivotal rule is r 12.2, which provides as follows:12.2 Judgment when there is no defence or when no cause of actioncan succeed(1) The court may give judgment against a defendant if the plaintiffsatisfies the court that the defendant has no defence to a cause ofaction in the statement of claim or to a particular part of any suchcause of action.(2) The court may give judgment against a plaintiff if the defendantsatisfies the court that none of the causes of action in the plaintiff'sstatement of claim can succeed.[11] There was no dispute as to the principles that apply to summary judgmentapplications.1[12] Essentially, on this application the Court must be left with no serious doubtthat the defendant/respondent has no defence to the claim. If there are disputes of factthat are incapable of being resolved, or cannot fairly be resolved, on affidavit evidence,then summary judgment will not be appropriate.2 However, even in a summaryjudgment application the Court is not obliged to accept evidence that is inherentlyincredible, and is entitled to take a robust approach to such issues.3Mr Matsis' defences[13] What, then, are the defences that Mr Matsis raises?[14] In his written synopsis of submissions Mr Reid summarised these in thefollowing terms:Essentially, the respondent contends that:a. He has a defence to the cause of action and the statement of claim;b. The Plaintiff's receivers, Messrs Fisk & Macey of PwC (the Receivers),with the consent of the Plaintiff, settled the sale of the business of ZanyZeus Ltd (the Company) and its related companies on 3 April 2020 (thesale), and failed to obtain the best price reasonably obtainable therebycausing loss and damage to the Respondent, as the guarantor of the debtsowing by the Company to the Plaintiff;1 See Kruikziener v Hanover Finance [2008] NZCA 187 at [26]–[27].2 See Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [62].3 Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 at 14 citing Eng Mee Yong vLetchumanan [1980] AC 331 at 341.c. The Receivers, prior to the sale, made false and misleadingmisrepresentations to the Respondent regarding the Plaintiff'senforcement of his obligations as a guarantor of the Companies' debts;d. By the conduct of the Receivers (and its own conduct) prior to the sale— to be established through the discovery process before trial — thePlaintiff is estopped from enforcing the Respondent's obligations as aguarantor.[15] By the time of the hearing Mr Matsis' defences had resolved themselves intotwo essential points, which I would summarise as follows:(a) First, that the Bank is estopped from enforcing the guarantee of thecompanies' debts given by Mr Matsis;(b) Second, that the Bank has breached a duty owed to Mr Matsis to securethe best price reasonably obtainable on the sale of the business and asa result it is prevented from pursuing Mr Matsis pursuant to theguarantees granted in respect of the company's debts at least for anyamount between the amount recovered (together with interests andcosts) and a reasonable amount (together with interest and costs).[16] I deal with the defences in that order.Estoppel[17] In his notice of opposition Mr Matsis pleads that:The Receivers, prior to the sale made false and misleadingmisrepresentations to the Respondent regarding the Plaintiff's enforcement ofhis obligations as a guarantor of the Company's [sic] debts By the conduct of the Receivers (and its own conduct) prior to the sale thePlaintiff is estopped from enforcing the Respondent's obligations as aguarantor [18] In support of that pleading, Mr Matsis swore a brief affidavit. He outlined thebackground to the formation of the business. He talked about how difficult thereceivership was for him. He said that it was his hope and expectation that the businesswould ultimately emerge from the process. He described how hard he workedthroughout the receivership. His evidence concluded:7. When I was working with the receivers they always lead me to believethat if I cooperated and worked hard, the Bank would be happy andwouldn't sue me under my personal guarantee.[19] That is all that Mr Matsis himself says in support of his estoppel defence.[20] His notice of opposition was also supported by an affidavit sworn byMr Gerald McDouall who, it will be recalled, headed up the consortium that ultimatelypurchased the business. However, Mr McDouall's evidence does not address theestoppel issue at all.[21] The Bank's Mr Williams responded to Mr Matsis' evidence. So did one of thereceivers, Mr Nacey.[22] In his affidavit in response Mr Williams says:21. At no point prior to, or during, the receivership did BNZ represent toMr Matsis that BNZ would refrain from enforcing his obligationsunder his personal guarantee if Mr Matsis cooperated with theReceivers. Nor did BNZ ever direct the Receivers to make suchrepresentation to Mr Matsis.[23] Mr Nacey says:46. I categorically reject making any such representations to Mr Matsis.As an experienced insolvency practitioner, I am aware that I have nocontrol over a bank's decision to pursue a guarantor under a personalguarantee and/or pursue bankruptcy proceedings, nor am I involvedin any such decisions. Those are matters solely for the bank.Accordingly, I would never make such a representation to Mr Matsis(or any person involved in a receivership).47. Mr Matsis had advised me that he had granted a personal guarantee toBNZ in respect of the Companies' indebtedness to BNZ. In myexperience, it is common for a director to provide a personal guaranteeto a bank in circumstances where the company/business is aclosely-held family business. Mr Matsis also advised me that he hadprovided personal guarantees to other creditors as well.48. I did have conversations with Mr Matsis when I spoke about the factthat our interests were aligned — in the sense that the greater therealisations generated through the receivership process the lessresidual debt he would owe to BNZ under his personal guarantee, andI encouraged Mr Matsis to assist the receivers through thereceivership process in order to achieve the highest realisationspossible. However, I emphasised to Mr Matsis on a number ofoccasions that the Receivers would not be involved in decisions madeby BNZ, or any other creditors to which Mr Matsis had providedpersonal guarantees, and that he needed to seek independent legaladvice regarding his personal affairs.[24] Mr Reid submits that the Bank cannot discharge the burden of demonstratingthat Mr Matsis has no arguable basis for his estoppel defence.[25] Mr Reid acknowledges that Mr Matsis' evidence that he was told by thereceivers that if he cooperated the bank would not sue him under the Guarantee isdenied both by the Bank through Mr Williams and the receivers through Mr Nacey.[26] He submits that it is significant that Mr Nacey confirms that he did haveconversations with Mr Matsis in which it was said that the interests of all parties werealigned, and in which Mr Nacey encouraged Mr Matsis to assist the receivers to obtainthe best price for the business.[27] Mr Reid says that it is also significant that Mr Nacey does not produce anycontemporaneous records of these conversations.[28] He concludes that:It follows that these disputed matters are clearly arguable requiring oralevidence at trial.[29] I do not accept that submission.[30] Certainly, there is a direct clash between Mr Matsis' very general assertion andthe denials that this has elicited from Mr Williams and Mr Nacey.[31] I cannot see how Mr Matsis' position is bolstered in any way by Mr Nacey'sacceptance of having had conversations of the sort he describes with Mr Matsis, whichI imagine are common as between receivers and the directors and other officers ofcompanies in receivership, encouraging them to assist the receivers and doing so bymaking the self-evident point that the parties all have the same interest in securing thebest price for the business.[32] Neither party has produced any contemporaneous records of these discussions,and nor would I necessarily expect them to have made records of general discussionsof the sort under consideration.[33] Standing back from the matter, it appears to me that the proposition that a largetrading bank and very experienced receivers would make representations to Mr Matsisof the sort he claims is an incredible one, even putting aside the categorical denials ofboth Mr Williams and Mr Nacey.[34] In any event, there is no evidence that Mr Matsis relied on the allegedrepresentation to his detriment.4[35] Even if there was evidence to support Mr Matsis' assertion that the receiversmade representations to him, there is no evidence to support the proposition that thereceivers had actual or any other form of authority to make any such representationson the bank's behalf. That would leave Mr Matsis with a claim against the receivers,but it would not provide a foundation for a defence or estoppel against the Bank.[36] In the end, I am left without any real doubt that Mr Matsis' estoppel defencecannot succeed.Realisation[37] The circumstances in which the Zany Zeus group's business was sold to thecompany formed by Mr McDouall, Zany Zeus 2020, are not touched on by Mr Matsisin his affidavit evidence. However, Mr McDouall describes the process, and I quotehis evidence as it is the most complete description.[38] Having introduced himself, and described how he became aware of thereceivership and interested in attempting to acquire the business, Mr McDouallcontinues:4 This would be required for an estoppel argument to succeed. See Wilson Parking v Fanshawe 136Ltd [2014] 3 NZLR 567 at [44].7. The ZZ2020 Consortium and the subsequent Zany Zeus 2020 Limitedfollowed the process outlined by PWC in its expression of interest,and other documentation, to the best of our ability.8. On 7 February 2020 we sent a formal indicative non binding offer toacquire the business and assets of Zany Zeus Limited (in receivership)to PWC. Our indicative price range was $2.5 - $5 million (Exclusiveof GST). We were subsequently provided additional informationrelating to the company and asked to provide a final binding bid.9. On 6 March 2020, as the sole Director of Zany Zeus 2020 Limited, anewly formed entity, I signed a binding (but still conditional) offer forthe acquisition of the business and assets of Zany Zeus Limited (inreceivership) for $3.5 million. We made a commercial call to makeour bid subject to a few conditions as possible.10. We subsequently were advised by PWC that the bid had beenaccepted, and we were given exclusivity for a period ending initiallyon 24 March 2020 and later extended to 31 March 2020.11. On Monday March 23 2020, the Government announced a nationallockdown in response to Covid 19. Within a couple of hours of thisannouncement, I received a call from Richard Nacey of PWC,advising that following discussions they were going to look at closingthe business down and mothballing the assets.12. I advised him that Zany Zeus 2020 limited had an exclusivity periodfor another week, and he needed to honour that exclusivity period. Heasked where we're at, in meeting the conditions and I advised we hadmet or were willing to waive all but two conditions in the offer dated6 March 2020, and were still working on the remaining two but wereconfident of meeting them or being in a position to waive themshortly.13. He advised "I am not going to lose my house over this". He askedwhat it would take to get us to waiver the conditions immediately toreduce this risk. Sensing an opportunity I advised price was alwaysan option. He asked me to come back with a reduced price toimmediately waive the conditions.14. I rang other key members of the consortium and advised them of thephone call and went back to Richard Nacey with a price of $1.5million + stock, some $2 million below the conditional offer. He saidhe needed to talk to others and the Bank (BNZ).15. He subsequently came back and offered $1.8 million all up (inclusiveof stock as they didn't want to do a stock take). This was subsequentlyaccepted. The assets and business were acquired on Friday 3 April2020 for a price of $1.8 million.[39] Neither Mr Williams nor Mr Nacey in their responses contradict thatdescription of events in any material way.[40] Mr Williams' affidavit in response refers to the Bank's appointment ofreceivers and he touches on how the Bank sees its ongoing role post appointment. Inparticular he says:I have personally been involved in the appointment of receivers on manyoccasions previously and understand that receivers have various statutoryduties and are required to act independently of the appointing creditor.[41] He continues by making a specific reference to the appointment documentationwhich, as he says, expressly provided that the receivers are not agents of the bank andare required to act independently.[42] He then goes on to describe the level of communication between the Bank andthe receivers in this case, referring to the irregular reports received, of which thereappear to have been four between 10 December and 9 March. He acknowledges that,having regard to the fact that the Bank held security over the Zany Zeus group's assets,the receivers would require the Bank's approval to any sale because the securitieswould need to be released, but says that, other than that, the judgments about the salewere largely left to the receivers. Finally, Mr Williams acknowledges that thereceivers kept the Bank informed of the negotiations in early March 2020 and that theBank agreed to the receivers' recommendation for the sale that was ultimately reached.[43] Mr Nacey replies in more detail to the implied and express criticisms of thesale. He begins by setting out the receivers' credentials. All I need say is that bothMr Fisk and he have many years of experience in the insolvency area.[44] Mr Nacey then goes on to describe the process that was undertaken todetermine whether to sell the Zany Zeus group business.[45] He commences that description by saying that having taken a series of formalsteps following their appointment the receivers turned their minds to the business'future. Mr Nacey picks up the description of events as follows:9. Next, Mr Fisk and I undertook an analysis of the current financialposition, and ongoing trading viability, of the Companies. We decidedto continue to trade the Zany Zeus business while determining the bestway to maximise the realisation of the Companies' assets.10. We engaged JLL to carry out a valuation of the Companies' assets, toinform our decision as to whether to sell the business as a goingconcern, or to realise the assets. JLL valued the assets on a [sic] botha market value ex situ basis and a market value in situ basis. A copyof that valuation is annexed marked "B". The in situ valuationassumed a going concern business that had both a new lease for, andcompleted new cheese plant at, the Seaview factory (neither of whichwas in place).11. The value of the assets on a market value ex situ basis according tothe JLL valuation was approximately $960,000 plus GST. The assetsincluded in the valuation comprised some assets subject to priorranking specific security. When these assets were removed from thevaluation, the value of assets subject to the BNZ security wasapproximately $775,000 plus GST. This is the approximate value thatMr Fisk and I considered might be achievable if the business were tocease trading and the assets sold at auction.[46] Mr Nacey then goes on to talk about various particular characteristics — goodand bad — of the Zany Zeus group's business, the mechanics of the process and howthe receivers ultimately received a small number of final bids, the most attractive ofwhich by some margin was from the McDouall consortium.[47] Mr Nacey then recounts that on 23 March 2020 the nationwide lockdown onaccount of COVID-19 was announced, and that that altered the landscape materiallyso that the receivers were not confident that a sale would ultimately be achieved forreasons which he sets out in detail.[48] Mr Nacey continues: Mr Fisk and I were unwilling to continue trading the Zany Zeus businessfor an extended period in lockdown conditions for the following reasons:(a) while we were able to trade the Zany Zeus business profitably duringthe receivership period, the profit margin was modest, and thebusiness in fact operated at a loss after receivership costs wereincluded. We considered it to be highly unlikely that the businesswould trade profitably in circumstances where approximately 65% ofrevenue was generated from customers in the hospitality sector, whothemselves would not be able to trade during the lockdown;(b) Mr Fisk and I could potentially face personal liability for tradinglosses incurred during the receivership period;(c) the factory had very narrow corridors, was crowded, and it would havebeen difficult to ensure social distancing between employees; and(d) we were cognisant of the large remediation costs that would be shortlyrequired to keep the Moera Zany Zeus factory compliant with foodsafety regulations.[49] Accordingly, the receivers contacted Mr McDouall on 23 March 2020. Hereis Mr Nacey's description on how matter preceded from that point:26. On 23 March 2020, I spoke to Mr McDouall by telephone about theconcerns outlined above. I advised him that if a sale could not beconcluded quickly (i.e. by ZZ2020 waiving the Insol Condition andthe Seaview Lease Condition), then Mr Fisk and I were consideringclosing the business until trading conditions stabilised.27. Mr McDouall expressed concern about the loss of value should theCompanies stop trading, even temporarily. Mr McDouall explainedthat he expected there to be a significant deterioration in value if thebusiness was closed. Mr McDouall also stated that ZZ2020 wasunwilling to enter an unconditional sale agreement at the price agreed,as it considered the Insol Condition and Seaview Lease Conditionwere critical to the value of the business. It was at this point that weappeared to be in a "stalemate". I invited ZZ2020 to "put a value" onthose conditions and put forward an unconditional offer, so that a salecould be achieved.28. ZZ2020 then submitted a revised indicative offer of $1.5 million,dated 23 March 2002, for the purchase of the Companies' assets,which was not conditional on the Insol Condition or the SeaviewLease Condition. I annex marked "H" a copy of the letter of offerdated 23 March 2020.29. Mr Fisk and I considered this revised offer. While it was lower thanthe initial offer received, we considered that, in the circumstances, itmay have been the best price we would be able to achieve at that time.While the offer was at a level that we would have accepted, we madea decision to attempt to solicit a higher offer to test whether ZZ2020would be willing and able to pay an increased amount. I then verballyadvised Mr McDouall that if ZZ2020 increased its offer to $2 million,the Receivers would accept that offer. ZZ2020 made a counter-off of$1.8 million, which Mr Fish and I accepted. Given the circumstancesat the time, we considered a sale price of $1.8 million to be a goodone. This agreement was then recorded in a revised letter of offer,also dated 23 March 2020, which is annex marked "I".30. Mr Fisk and I were comfortable with the revised offer being inclusiveof stock because:(a) I had a good understanding of the stock held by the business(as no goods or services were ordered during the receivershipwithout me or a PwC staff member signing a purchase order,and we were constantly monitoring the trading performance);and(b) there were cost and health and safety concerns aboutcompleting a full stocktake during the COVID-19 lockdown.31. The sale of the assets of the Companies settled on 3 April 2020 andall assets were transferred to ZZ2002 in accordance with the finalSPA, dated 1 April 2020. I annex marked "J" a copy of the final SPA.32. I have read the affidavit of Mr McDouall, dated 3 December 2020,and filed in this proceeding. At paragraphs 11 to 13 of his affidavithe refers to the telephone discussion of 23 March 2020 that I havereferred to above. At paragraph 13 of his affidavit, Mr McDouallstated that I: advised "I am not going to lose my house over this". He askedwhat it would take to get us to waiver the conditions immediately toreduce the risk.33. I do not recall using the phrase "I am not going to lose my house overthis", but I did express concerns regarding the risk of continuedtrading (as set out above). To the extent that Mr McDouall may beimplying that I expressed concern about my liability due to the SPAconditions, that is incorrect. However, I did express concern aboutpotential liability that could arise from the continued trading of thebusiness during the lockdown (as stated above).Best price reasonably obtainable at the time of sale34. As a Licenced Insolvency Practitioner, a Chartered Accountant, and aPartner at PwC, I am very aware of my legal and ethical duties whenacting as a receiver of a company. Mr Fisk is similarly aware of hislegal and ethical duties. Those duties include a specific statutory dutyunder s 19 of the Receiverships Act 1993 to obtain the best pricereasonably obtainable as at the time of sale when selling property inreceivership.35. The steps that Mr Fisk and I have taken to date in the receiverships ofthe Companies have been entirely appropriate, and are consistent withthe many receiverships that I and Mr Fisk have previously undertakenduring our professional careers. The sale process that we undertookin respect of the Zany Zeus business was appropriate for the nature ofthe business, was robust and yielded a good level of interest.36. Ultimately, any sale of the Zany Zeus business faced difficultiesrelating to:(a) securing a lease for essential premises; and(b) securing an agreement for the supply and installation ofessential cheese-making equipment from Greece.37. In addition, we were seeking to sell a trading business that suppliedthe retail/hospitality sector during an unprecedented nationallockdown of uncertain duration, resulting from a global pandemic.There was no certainty how the Zany Zeus business would be affectedby the pandemic, both in the short term and the long term.38. I believe that Mr Fisk and I obtained the best price reasonablyobtainable for the Zany Zeus business in the circumstances.39. Despite an extensive sale process prior to lockdown, no other offerswere received that would have produced a greater return for theCompanies' assets than Mr Fisk and I achieved, and the final sale pricesignificantly exceeded the ex situ valuation of the Companies' assetsobtained from JLL.[50] Mr Nacey also gives evidence that the BNZ had no direct involvement in thenegotiation or sale:40. Although Mr Fisk and I were appointed as receivers by BNZ, we actas agents of the Companies, not of BNZ. This is clear as a matter ofgeneral practice, and was expressly stated in our appointmentdocuments. Mr Fisk and I act independently of BNZ and we aremindful in all of our receivership appointments not to act in a mannerthat would cause us to act as agents for our appointing securedcreditor. At no stage during the receiverships of the Companies havewe acted as agents for BNZ, nor have we held ourselves out as beingthe agents of BNZ.41. As is normal process in a receivership, Mr Fisk and I did keep BNZupdated as to the progress of the sale process. This included bothwritten and verbal updates regarding the nature of the sale process;the number of interested parties and the extent of their interest;information regarding the non-binding indicative offers received; andinformation regarding the final offers received. We also providedBNZ with updates regarding the discussions with ZZ2020 during thenegotiations around the SPA, and the negotiations regarding the saleprice on 23 and 24 March 2002. One of the primary reasons to keepBNZ updated during the sale process is to ensure they are providedwith adequate information to make a decision as to whether they agreeto release their security over the assets being disposed of. In myexperience most appointers will consider, among other things, therobustness of the sale process used to achieve a sale, together with theagreed sale price when making a decision regarding the release ofsecurity.42. Following the sale of the Zany Zeus business and the other assets ofthe Companies, we have made distributions to BNZ totallingapproximately $1,370,000. We have also paid the preferentialcreditors (identified above) and made distributions totallingapproximately $12,000 to creditors with valid security interests,where the assets subject to those security interests (such as rawmaterials) were realised by the Receivers. I annex marked "K" a copyof our receivership reports for the Companies filed to date.[51] Mr Reid relied on Black v The Ottoman Bank5 and Standard Chartered BankLtd v Walker6 for the following propositions:(a) Although receivers are appointed by a security holder over the businessof the giver of the security are prima facie not the agents of the securityholder but the agents of the giver of the security, both at common lawand in New Zealand under the Receivership Act, nevertheless in theexercise of their duties they owe responsibilities to the giver of grantorof the security and any guarantors of the grantor's obligations toachieve the best price possible; and(b) The security holder and appointor of the receivers may itself incurliability to the giver of the charge or any guarantor — seemingly basedon negligence principles if it were shown that the security holderinterfered with the receivers' conduct of the receivership.[52] Those propositions are elementary and, as Mr Reid submitted, are reflected invarious leading commentaries. Mr Caird did not contend otherwise.[53] The dispositive issues in relation to this second defence are first, whether thereis any arguable foundation for the contention that the receivers did not discharge theobligation they owed to the Bank, the Zany Zeus companies and Mr Matsis in hiscapacity as guarantor to realise the best price reasonably obtainable for the business,and second, even if there is an arguable case to that effect, whether there is an argumentthat the Bank may be liable for the actions of the receivers because it intermeddled(my term rather than any term that emerges from the authorities) with the receivers'actions.[54] Mr Reid contended that there is a real possibility that the receivers may havepanicked when the initial lockdown was announced and were "tunnel-visioned" insettling the sale at any price, even if that was not the best price reasonably obtainable.5 Black v The Ottoman Bank (1862) 15 Moo P.C.C. 472; 15 E.R. 573.6 Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410.He submitted a reduction of close to 50% is highly material, and that there is noindependent evidence that the price obtained was the best price reasonably obtainable.[55] There is no evidence upon which the Court would be entitled to conclude thatthe receivers panicked. For a start, the assertion that the price obtained was 50 per centless than originally proposed by the McDouall consortium offered is misleading. Theconsortium's offer was heavily tagged. It is true that the price ultimately achieved was50 per cent lower than the figure mentioned, but that is not to say that it was 50 per centlower than the figure that the parties would ultimately have landed on in any event.Moreover, no evidence has been offered by Mr Matsis establishing that a higher pricewas available. Even more fundamentally, Mr Nacey's evidence as to why there was areduction in the price is quite unanswered.[56] Mr Nacey explains that the draft sale and purchase agreement undernegotiation was conditional on Zany Zeus 2020 agreeing two important contracts withthird parties — a new lease for the factory in Seaview, and arrangements in respect ofthe installation and commissioning of equipment— that, according to Mr McDouall,were critical to the value of the business. But there were serious impediments toZany Zeus 2020 getting these contracts over the line. Mr Nacey therefore invitedZany Zeus 2020 to "put a value" on those conditions. After more back and forthnegotiation, the final offer price was reached, which, among other things such as theuncertainty created by COVID-19, reflected the fact those two important contractswere no longer part of the picture.[57] The argument that the Bank may be liable for the actions of the receiversbecause it improperly interfered with the receivers' actions can be dealt with briefly.The short point is that there is no evidence to establish this. The correspondence thatdid take place between the receivers and the Bank appears to be directed at keepingthe Bank informed about the sale process, just as one would expect.[58] In my view, the evidence falls well short of establishing the Bank wasimproperly directing the receivers. Generally, a secured party's intervention will needto be serious before any liability can attach to it for the receiver's actions; givingadvice to or holding discussions with the receiver, or making known its preferences,will not render the secured party liable.7Conclusion[59] In the end, for those reasons, I am satisfied that the Bank is able to make outits claim, and that Mr Matsis has no reasonably arguable defence to the same.[60] Accordingly:(a) I enter summary judgment in the Bank's favour against Mr Matsis inthe terms sought in sub-paragraphs (a) and (b) of the prayer for reliefin the plaintiff's statement of claim;(b) Costs are reserved. If counsel are unable to agree as to costs, they mayfile and serve memoranda in the usual way.Associate Judge JohnstonSolicitors:Simpson Grierson, Auckland for plaintiffFranks Ogilvie, Wellington for defendant7 Peter Blanchard and Michael Gedye The Law of Private Receivers of Companies in New Zealand(3rd ed, LexisNexis, Wellington, 2008) at 39.