CATALINA GUINTO DE LEON V BANK OF NEW ZEALAND HC NEL CIV 2012-442-462

CATALINA GUINTO DE LEON V BANK OF NEW ZEALAND HC NEL CIV 2012-442-462 [24 October 2012]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCIV 2012-442-462[2012] NZHC 2984UNDER the Criminal Proceeds (Recovery) Act 2009AND UNDER the Property Law Act 2007IN THE MATTER OF an application for injunction to stay sale ofland pending completion of Court ofAppeal proceedingsBETWEEN CATALINA GUINTO DE LEONApplicantAND BANK OF NEW ZEALANDRespondentHearing: On PapersCounsel: R Ord for ApplicantS A Barker and E Ritchie for RespondentJudgment: 24 October 2012JUDGMENT OF SIMON FRANCE J[1] Ms de Leon makes an originating application without notice for an injunction stopping the Bank of New Zealand proceeding with a mortgagee sale tomorrow. The papers have been served on the respondent. A telephone conference was arranged and I heard from counsel.[2] Ms de Leon's partner was convicted of drug offending. Miller J ruled that thecouple's interest in the property be subject to forfeiture. That decision is subject toan appeal which is to be heard in February next year. The forfeiture order recognisedthe Bank's interest in the property as mortgagee.[3] It appears that Ms de Leon has not made payments on the mortgage for more than a year. The bank has followed the proper processes to exercise its mortgage rights and the sale is to take place tomorrow.[4] The applicant seeks to have the Court injunct the sale until such time as theappeal is heard. The theory is that if the appeal is successful, "title will revert to[Ms de Leon] and she would hope to restart payments". Ms de Leon says she can start to make payments of $750 now. Mr Ord refers to the inequity involved in Ms de Leon succeeding on her forfeiture but the property would be already sold.[5] The application cannot succeed. The Bank is exercising its rights independent of any forfeiture issue. Even if the appeal succeeded, there is no reason why the Bank could not exercise its rights under the mortgage. The two matters are unconnected. I also observe that an unsigned undertaking as to damages cannot be given weight in such circumstances. There would at least need to be evidence that the equity in the house (itself currently forfeit to the Crown) clearly outweighed the money owing to the Bank if the property were sold. However, it is not necessary to consider that further since no basis exists for the Court to interfere.____________________________Simon France JSolicitors:R Ord, Barrister & Solicitor, Nelson, email: rwol@xtra.co.nzS A Barker, Partner, Buddle Findlay, Wellington, email: scott.barker@buddlefindlay.com