CREDIT INVESTMENTS LIMITED V GOH HC AK CIV-2008-404-1713

CREDIT INVESTMENTS LIMITED V GOH HC AK CIV-2008-404-1713 2 December 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-404-1713BETWEEN CREDIT INVESTMENTS LIMITED Plaintiff AND PENG GUAN GOH Defendant Hearing: 19 November 2008 Appearances: DA Wood for Plaintiff DB Hickson for Defendant Judgment: 2 December 2008 at 10:30 amJUDGMENT OF ASHER JThis judgment was delivered by me on 2 December 2008 at 10:30 am pursuant to Rule 540(4) of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: Jenny Wang & Associates, PO Box 64-345 Botany Town Centre, Auckland Castle Brown, PO Box 9670 Newmarket, Auckland Copy: DA Wood, Barrister, PO Box 1452 Shortland Street, AucklandTable of ContentsParagraph NumberIntroduction [1]Background [3]Summary judgment principles [16]Grounds of opposition [18]Amount of the term loan [19]The dissolution of the partnership [23]The schedule [26]Arguments as to quantum [33]Further issues [47]Sale of Lot 1 [51]Breach of duty as mortgagee in possession to maintain the property[55]Breach of duty to obtain the best price [59]Other allegations [63]Conclusion [64]Result [70]Introduction[1] The plaintiff Credit Investments Limited ("Credit Investments") seeks summary judgment against the defendant Mr Peng Guan Goh in the sum of $669,603.25. [2] Credit Investments claims that it is owed this sum under a loan and mortgage agreement. Credit Investments has sold the property the subject of the loan and mortgage by mortgagee sale. The $669,603.25 sought is the shortfall between the net amount received on sale and the amount owed under the loan agreement and mortgage.Background[3] The property concerned is located at 327 Ridge Road, Pokeno ("the property"). It comprises approximately 58 hectares of pasture land, which is used for grazing. On 30 June 2004 Mr Goh together with a Mr Chu, with whom he was in a business arrangement, entered into an agreement to purchase the property for $860,000 from the owner. This agreement was later replaced by a second agreement for sale and purchase dated 10 August 2004 ("the August agreement"). [4] The business arrangement between Mr Goh and Mr Chu collapsed in August 2004, prior to the settlement of the purchase of the property. Mr Goh then approached a mortgage broker, Mr Dian Tan, known as George Tan, to assist him in obtaining mortgage finance so he could settle the purchase. Mr Goh appears to have been undercapitalised from the outset and in search of a financial partner or backer. With Mr Tan's assistance Mr Goh negotiated a mortgage of $600,000 from Southpac Finance Trust Limited ("Southpac Finance") and a second mortgage from the vendor of $180,000. With this finance Mr Goh settled the purchase and became the registered proprietor of the property. [5] In November 2004 Mr Goh and Mr Tan entered into a partnership agreement in relation to the management of the property ("the November partnership"). Mr Tanmade some payments under the partnership but for reasons not explained by Mr Goh the partnership did not proceed. In January 2005 Mr Goh was introduced by Mr Tan to a Mr Lin Miao, who is the director of the plaintiff Credit Investments. They entered into a heads of agreement on 21 January 2005 in relation to the management of the property ("the January partnership"). [6] Essentially the heads of agreement provided for Mr Miao to make certain payments relating to the property including mortgage payments. He was to have equal ownership of the land and ultimately an equal division of the profits after certain stated deductions. Mr Goh claimed he had contributed $130,000 towards the purchase, and Mr Miao was to contribute a sum equivalent to Mr Goh's contribution to the purchase ($130,000) to cover the cost of subdividing the property. Although not called a partnership agreement, it clearly was. Mr Goh reimbursed Mr Tan for payments under the November partnership he had made. Mr Miao proceeded to meet the mortgage outgoings and to make other payments in relation to the property, which he continued to do throughout 2005. [7] The January partnership was terminated by agreement at the latest on 14 December 2005, when Mr Goh and Mr Miao entered into an agreement under which Mr Miao was to purchase the property from Mr Goh for $1,180,000 ("the December agreement"). It was a term of the agreement that new titles were to be obtained. Settlement was to take place five days after the new titles issued. Mr Miao paid a deposit of $200,000 on 15 December 2005, which Mr Goh used to repay the vendor mortgage under the August agreement. Mr Miao continued to finance the property. By 12 October 2006 the subdivision was at least partly completed. [8] In June 2006 the new titles issued. Settlement of the sale by Mr Goh to Mr Miao was scheduled for 19 October 2006 and a settlement statement was issued. [9] On 13 October 2006 an exchange of correspondence began between the parties' solicitors as to the sum owing on settlement. On that date Mr Miao's solicitors, Jenny Wang & Associates, wrote to Mr Goh's solicitors, Castle Brown, advising that the settlement would need to take into account advances in the sum of$705,137.43 by Mr Miao or on his behalf to Mr Goh in relation to the property ("the letter"). The letter attached a schedule of sums owing by Mr Goh to Mr Miao ("the schedule"). I will refer to the letter and the schedule again later. [10] On 18 October 2006 Mr Goh entered into an agreement to sell a lot on the property, Lot 1, to a Mr Jiang for $200,000 ("the Lot 1 agreement"). Mr Jiang was an associate of Mr Miao. [11] The parties' solicitors exchanged correspondence from 19 October 2006 which contemplated that the December agreement would not proceed. Instead, Mr Goh would remain owner of the property and would execute a term loan agreement under which Mr Miao or his interests would advance Mr Goh a sum of money to be secured by a mortgage over the property. Mr Goh would use the loan advance to obtain a discharge for the Southpac Finance mortgage on settlement. Mr Miao would not purchase the land but rather would become a mortgagee. A number of draft term loan agreements were circulated between the lawyers. The third draft was accepted and executed on 20 October 2006 ("the term loan"). [12] The term loan showed Credit Investments as the lender, even though much of money secured by the mortgage was advanced by Mr Miao personally. It is common ground that Mr Miao is the sole director and shareholder of Credit Investments. The total principal sum of the advance as shown in the term loan was $1,355,137.43. That amount was made up as follows: a) The sum of $705,137.43, representing payments made in relation to the property by Mr Miao to Mr Goh under the January partnership. The composition of the $705,137.43 is a key issue contested by Mr Goh, referred to in more detail later in this judgment. b) The sum of $200,000, representing the deposit that Mr Miao had paid to Mr Goh under the December agreement, which now had to be refunded. Mr Goh has not disputed that this sum was properly part of the make-up of the $1,355,137.43. Indeed, he has listed it in theamounts that he accepts should have been part of the term loan at paragraph 12 of his second affidavit. c) The balance in the sum of $450,000, which was a cash advance to be made by Credit Investments to Mr Goh. [13] On settlement of the loan advance Mr Goh's solicitors paid the sum of the existing Southpac first mortgage of $631,043.68. That mortgage was discharged and a new mortgage in favour of Credit Investments was registered ("the Credit Investments mortgage"). Under the terms of the Credit Investments mortgage, Mr Goh was to repay the principal and interest due to Credit Investments by 20 April 2007. [14] 20 April 2007 passed without payment by Mr Goh. On 15 May 2007 Credit Investments issued and served on Mr Goh a notice under s 92 of the Property Law Act 1952. Mr Goh did not respond to the notice, which expired on 20 June 2007. Credit Investments then proceeded with a mortgagee sale of the property. On 9 November 2008 the real estate agent Barfoot & Thompson Limited issued tender documents to sell the property. Credit Investments entered into an agreement for sale and purchase with a purchaser in response to an offer of $1,020,000, which was the highest offer received. The sale settled on 13 December 2007. Following the sale, Ms Wang of Jenny Wang & Associates wrote to Mr Colin Girven of Castle Brown seeking Mr Goh's advice on what should be done about GST on the sale. Mr Girven replied on 25 January 2008, advising of Mr Goh's instructions as to how to deal with GST. [15] On 27 March 2008 Credit Investments filed this application for summary judgment against Mr Goh seeking the shortfall between the net amount received on the mortgagee sale of the property and the amount owing on the Credit Investments mortgage. When the matter was first called on 20 June 2008 Mr Goh appeared in person. The Court granted Mr Goh a short adjournment to give Mr Goh an opportunity to apply for leave to oppose the summary judgment application out of time. On 27 June 2008 Mr Goh filed an application for leave to proceed out of timetogether with a notice of opposition to the summary judgment application. After the hearing of the opposed application for leave, leave was granted on 7 August 2008.Summary judgment principles[16] The principles to be applied to the grant of summary judgment are well settled and were not subject to any competing submissions. Rule 136 of the High Court Rules sets out when an application may succeed:136 Judgment where there is no defence or where no cause of action can succeed(1) The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a claim in the statement of claim or to a particular part of any such claim. (2) The Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff's statement of claim can succeed.]It was said in Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3:In this context the words "no defence" have reference to the absence of any real question to be tried. That notion has been expressed in a variety of ways, as for example, no bona fide defence, no reasonable ground of defence, no fairly arguable defence.[17] The legal principles relating to the grant of summary judgment were summarised in the recent Court of Appeal decision of Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]:The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).I propose adopting these principles.Grounds of opposition[18] There are quite a number of grounds of opposition to Credit Investments' application, and there has been some change in at least emphasis between the filing of the notice of opposition, the filing of submissions and finally the oral submissions. I will refer to the headings used in Mr Hickson's submissions for Mr Goh although I will not follow them exactly, as some points were emphasised and others not pursued.Amount of the term loan[19] Submissions generally focusing on the amount of the term loan were made under different headings, including "No accounting on dissolution of partnership" and "Quantum inflated". [20] The essential point is Mr Goh's contention that the amount shown in the term loan was incorrect and should have been a lower figure. It is Mr Goh's assertion that Mr Miao misled him as to the true amount of his indebtedness when he signed the loan agreement. He asserts that rather than owing the sum of $705,137.43 he owed an amount approximately of $315,000 less. This meant that rather than owing the $1,355,137 shown in the term loan, Mr Goh in fact owed a much lower sum of approximately $1 million. Mr Goh did not put forward an exact figure of what he accepted he owed. [21] Mr Hickson for Mr Goh put his submission on the basis that Mr Miao had misrepresented the parties' financial position to Mr Goh. He claimed that Mr Miao had engaged in "misleading and deceptive conduct" as to the amount Mr Goh owed to Mr Miao as shown in the schedule sent by Mr Miao's solicitor. Mr Hickson submitted that in terms of s 9 and s 43(2) of the Fair Trading Act 1986, this entitles Mr Goh to a reduction in the mortgage sum or some other relief.[22] This claim was based on Mr Goh's claims in his affidavits that he trusted Mr Miao and accepted that the sum Mr Miao claimed he was owed was correct. In examining this contention it is necessary to go into the facts in some greater detail.The dissolution of the partnership[23] Mr Hickson submitted that no proper accounting between Mr Goh and Mr Miao existed upon the termination of the January partnership on 15 December 2005. His point was that if there had been a proper accounting of the January partnership some reduction in the amount of the term loan was appropriate, even though the partnership was terminated approximately eleven months before the signing of the term loan. [24] However, the parties had implicitly agreed that there would be no accounting after dissolution of the partnership. While the partnership was undoubtedly terminated, it was replaced by the December agreement under which Mr Miao was to purchase the property from Mr Goh for $1,180,000, a price considerably in excess of the $860,000 that Mr Goh had paid for the property. The effect of this agreement was that by way of an increase in the value of the property Mr Goh got the benefit of all monies spent on the property, in particular Mr Miao's expenditure. He retained this benefit when the term loan replaced the agreement. [25] The January partnership was therefore replaced by the December agreement for sale and purchase, which in turn was later replaced by the term loan. If there was to be an accounting in relation to the partnership, Mr Miao would have been entitled to half the profit on the sale of the property. This did not happen. Rather, the January partnership was replaced by the December agreement for sale and purchase, which in turn was replaced by the term loan. The usual accounting on dissolution of partnership did not occur, as the parties had agreed on a different way forward. It followed that Mr Miao was entitled to a refund of what he had spent, and this is how the parties proceeded when the term loan was agreed.The schedule[26] Throughout the period of negotiation which led to the cancellation of the December agreement for sale and purchase and the execution of the term loan, Mr Goh was represented by Mr Colin Girven of Castle Brown. Mr Miao's solicitors, Jenny Wang & Associates, wrote to Mr Goh advising that the sum owed by Mr Goh was $705,137,43 in the letter of 13 October 2006. After referring to the sum Ms Wang stated:We enclose a copy of the statement for your attention. Accordingly kindly confirm this amount is correct and forward us your amended settlement statement as the [sic] matter of urgency. [emphasis added]This sum was to be deducted from the purchase price to be paid by Mr Miao. The schedule attached to the letter set out in detail payments made by Mr Miao for which he was to be reimbursed. The schedule showed the date of the payments, the amount of the payments and the interest due at 13 per cent. The schedule later formed the basis for the amount shown in the term loan. [27] Mr Goh submitted that the schedule included many items that he did not owe. He submitted that it wrongly inflated his indebtedness by approximately $315,000. [28] Following the letter of 13 October 2006 the parties agreed to cancel the December agreement and replace it with the term loan. Castle Brown sent a fax of 19 October 2006 recording that the agreement was cancelled, and stating:[Mr Goh] also advises that your client has agreed to lend him a further [sic] up to $650,000 (actual figure to be determined) in addition to the monies already advanced (figure also to be confirmed), which are to be evidenced by a loan agreement to be prepared by you, with settlement set down for tomorrow 20 October 2006. [emphasis added][29] Ms Wang responded on the same date and stated that Credit Investments would advance $450,000 less legal fees. Ms Wang's response also records also that her client would "advance" "$200,000 from the purchase of Lot 1".[30] On or around 20 October 2006 three draft term loan contract documents were exchanged between the parties as part of a negotiation process. On one of the drafts Ms Wang wrote a note asking Mr Girven to confirm the agreement. In a fax later that day Mr Girven discussed the form of mortgage and other details. He advised that interest was to be paid in one lump sum on the repayment date and not monthly, and Mr Girven hand-wrote on the fax sheet that his client insisted upon that term. This amendment was incorporated into the term loan. [31] I make two observations arising from these exchanges. First, Mr Goh was represented by lawyers throughout who appeared to take an active role in pursuing his interests, and who indeed negotiated terms that were advantageous to Mr Goh. Secondly, Mr Goh had a period of seven days during these negotiations in which to consider the schedule. He had indeed been invited to confirm the amount it showed as correct. He did not directly confirm the amount as correct, and his own lawyer had recorded prior to settlement "figure also to be confirmed". However, the fact that further correspondence from his lawyers did not raise any objection while raising objections to other matters indicates that the figure was indeed confirmed (or at least not disputed) by the time of settlement, even though there is no formal statement to this effect. [32] There was no further correspondence between lawyers until after the mortgagee sale when GST issues were discussed. No complaint was made about the amount set out in the schedule or in the term loan, or indeed the mortgagee sale.Arguments as to quantum[33] It is necessary now to consider Mr Hickson's detailed arguments as to the quantum of the mortgage and his assertion that the schedule showing $705,137.43 owing contained material errors. It must first be observed that there is a chain of receipts disclosed in Mr Miao's affidavit as to many of the payments made by him. Mr Miao clearly took the precaution of obtaining signed receipts from Mr Goh in relation to many of the payments that he made. Essentially Mr Miao seems to have been financing the maintenance of the property, loan interest and the subdivision work during the period of the partnership and the period when he was a purchaserunder the December agreement. Clearly a number of the payments made were for subdivision costs, being payments to surveyors and to the council and such like. [34] Mr Hickson argued that Mr Miao made these payments pursuant to clause 6 of the January partnership in which it was stated that Mr Miao's contribution of $130,000 was to cover the cost of subdividing the property. He submitted that the payments were therefore not recoverable as Mr Miao had an obligation to pay them. Mr Hickson also argued that Mr Miao had not produced receipts for all the payments shown in the schedule. He also asserted that two very large payments, one of $200,000 and one of $150,000, were not explained. [35] I do not accept the criticisms of the schedule. Any obligation to pay subdivision costs ended when the January partnership ended on 14 December 2005. Mr Goh retained all the benefit of payments made in respect of maintaining the property or its subdivision because he retained ownership of the property. If there had been a proper dissolution of the partnership, Mr Goh would have been obliged to share any profit with Mr Miao. In fact this is not how the parties proceeded. The schedule therefore rightly showed these payments as monies to be repaid by Mr Goh. Mr Goh accepted them when he received the schedule. [36] Mr Miao has produced receipts signed by Mr Goh to show that the payments of $200,000 and $150,000 were in fact made. The figures were shown in the schedule Mr Goh received and were not contested. It cannot be credibly suggested now that those amounts were not owed. [37] Mr Goh's acceptance of the schedule and signing of the loan agreement is consistent with what would in any event have been logical; the payments made by Mr Miao in respect of the property had to be refunded to him as Mr Goh would now have the benefit of them. [38] Mr Hickson criticised Mr Miao's charging of interest on the payments he made. However, it is quite clear from the schedule that interest was being charged and in accepting the term loan amount Mr Goh was accepting the obligation to pay that interest. There is nothing surprising in Mr Miao wanting interest in respect ofpayments that he had made as he was entitled to a return on any money advanced to Mr Goh once he ceased to have any interest in the property. [39] Mr Hickson observed that some of the payments made by Mr Miao on behalf of Mr Goh were themselves for interest on the Southpac Finance mortgage. However, this does not affect the fact that in making the payments, Mr Miao had advanced monies to Mr Goh in respect of which he was entitled to interest. [40] Mr Hickson pointed out that Ms Wang in her letter of 19 October 2006 described the $200,000 part of the advance in the term loan as their payment of the purchase of Lot 1. In fact Mr Miao was not buying Lot 1. Another of Ms Wang's clients, Mr Jiang, was doing so. However, Ms Wang in her affidavit sets out clearly that the $200,000 part of the advance in the term loan was the refund of Mr Miao's deposit under the ill-fated December agreement. This is consistent with the circumstances at the time. Mr Miao had paid the $200,000 as a deposit for a purchase which it was agreed would not proceed and he was entitled to a refund. Mr Goh has accepted that the $200,000 deposit was paid by Mr Miao under the December agreement and that when the sale was cancelled it had to be refunded in his second affidavit. Mr Goh has in his second affidavit accepted that the $200,000 deposit was part of the term loan. I do not consider that the remark in Ms Wang's letter should be treated as establishing an error in the amount of the term loan. [41] Mr Hickson for Mr Goh also asserted that Mr Miao failed to make mortgage payments on the Southpac Finance mortgage in a timely manner, giving rise to an increased liability for interest as shown in the schedule. Mr Miao denied this allegation and claimed that there is simply no evidence of this. Mr Miao denied that default interest was actually paid on the Southpac Finance mortgage. There is indeed no evidence to support the assertion that late payments were earning default interest. Further, much of the evidence put forward by Mr Goh in support of this allegation did not relate to the period of complaint. This allegation is not made out. [42] There were, therefore, three payments of $200,000 of relevance. The first was Mr Miao's deposit under the December agreement on 15 December 2005. The second was an advance made by Mr Miao to Mr Goh (and acknowledged by Mr Gohin a signed receipt) on 17 January 2006. The third was the payment by Mr Jiang as the purchaser of Lot 1 on 20 October 2006. The $200,000 part of the advance in the term loan was the refund of the first sum. As stated, the $200,000 refund of the deposit was in addition to the $705,137.43. [43] Further, the principal sums and the interest totalling the $705,137.43 were all contractually accepted by Mr Goh in the term loan agreement as being part of what he would owe. His explanation that he accepted them because he "trusted" Mr Miao is not consistent with the correspondence between the solicitors, which show what would be expected in relation to an arm's length transaction. [44] Indeed, many of Mr Goh's statements in his second affidavit lack inherent credibility. In particular, he asserts in relation to the term loan that Mr Miao told him that "Mr Miao would be selling the property and that after its sale I would have no liability to him". This is entirely inconsistent with the nature of the term loan agreement and the correspondence between the solicitors. There was no question of Mr Miao selling or of Mr Goh being absolved from liability. [45] Thus, for the reasons I have given Mr Goh has not adduced any credible evidence of any misrepresentation by Mr Miao prior to the term loan being executed. [46] The fact that there was no misrepresentation is borne out by Mr Goh's subsequent conduct. He took no action when the mortgage fell due to query his obligation to pay it. He took no action when the Property Law Act notice was served or when it expired. He made no protest when his lawyer Mr Girven wrote to advise on how GST on the mortgagee sale should be paid. He took no action at all until faced with the imminent entry of summary judgment, at which stage he appeared in Court to oppose the application. Even then, however, in his first affidavit he did not query the amount of the term loan. Mr Goh's actions in not protesting for over 18 months indicate that he had no quarrel with the amount that he owed, but simply was not in a position or was not willing to pay it.Further issues[47] I have been referred to a number of authorities by counsel, but they all focus on answers by Mr Goh to possible defences by Credit Investments to established misrepresentations. As I have concluded there is no credible evidence of misrepresentations, it is not necessary to deal with these authorities. For the same reason I have not dealt with authorities on the imputation of knowledge to a company, as I have concluded that neither Mr Miao nor Credit Investments had the requisite actionable knowledge. [48] Mr Wood for Credit Investments sought to rely on the parol evidence rule, but I do not consider that that is relevant to this application. There is no issue as to the terms of the agreement and there has been no effort to adduce oral evidence in relation to the terms of the agreement. Rather, the issue is simply whether there was a misrepresentation. [49] The question arises whether Mr Goh is estopped by his actions from denying the correctness of the figure in the term loan. I record that given the detailed reference to the figure being confirmed in the exchange of correspondence, it may well be that Mr Goh represented that he accepted the figure of $705,137.43 as correct. Credit Investments acted as a result of the correspondence in signing the mortgage and advancing the funds, and it is unlikely that it would have done so if Mr Goh had contested the amount on the mortgage. Given that Mr Goh had before him a complete break-down of the payments made, and that the payments were made to him so that he should have known about them, he may well be estopped from now resiling from his earlier position and claiming that the figures were incorrect. I did not have detailed submissions on this point, and it is not necessary to take it any further. [50] I will now consider various defences which Mr Hickson submits give Mr Goh a right of set off.Sale of Lot 1[51] Lot 1 of the subdivided property was sold on 18 October 2006 to a Mr Jiang. Mr Jiang was an associate of Mr Miao who introduced him to Mr Goh. Mr Goh alleges that Mr Miao was the beneficial purchaser of Lot 1, and that it was a purchase at an under-value. It was not articulated what legal basis gave rise to a defence on this ground, but it was presumably some sort of breach of fiduciary duty. [52] Mr Goh in his affidavit asserted that he had learned from discussions with Mr Tan that Mr Jiang was merely an agent for Mr Miao, and that Mr Miao had improperly profited from the sale. Mr Goh's uncorroborated hearsay statement about Mr Miao's involvement was not confirmed or indeed referred to by Mr Tan in an affidavit he filed in support of Mr Goh's position. I can place no weight on it. Equally, I place no weight on the fact that Ms Wang acted for Mr Miao. Clearly she acted for a number of businessmen in the Chinese community. [53] Mr Miao has firmly denied the assertion that the Lot 1 sale and purchase transaction was not at arm's length. If what Mr Goh is alleging is a breach of fiduciary duty on Mr Miao's part, it is not established as there is nothing beside Mr Goh's suspicion to suggest that Mr Miao was the beneficial purchaser. Ms Wang's letter of 19 October 2006 refers to a sale of Lot 1, but that was obviously an error. [54] Thus, there is no credible defence based on the claim that Mr Miao profited from the sale of Lot 1.Breach of duty as mortgagee in possession to maintain the property[55] It was submitted that Credit Investments was in breach of its obligations to maintain the property as mortgagee in possession. However, although Mr Goh has made assertions in his affidavit that Credit Investments became the mortgagee in possession, there is in fact no evidence to support that assertion at all. Mr Miao strongly denies it, and maintains that neither he nor Credit Investments exercised control over the property prior to the mortgagee sale. Before any breach of duty asmortgagee in possession can be established it is necessary for the Court to conclude that there is evidence that he was a mortgagee in possession. [56] Such evidence as exists would indicate that Mr Miao was never in possession of the property at any time. There is evidence that Mr Goh was initially involved in the management of the property, and there is nothing to indicate that this changed. There is evidence that Mr Goh initially received grazing fees. Apparently grazing fees have been paid by third parties in respect of the property through the period following the Credit Investments mortgage. Mr Miao vigorously denies having received them. I consider that there is no credible basis for Mr Goh's assertion that Credit Investments received those grazing fees. [57] Following the mortgagee sale, on 19 December 2007 Jenny Wang & Associates sent a letter to Mr Goh noting that he still had containers on the property and asking that those containers be removed immediately. Mr Goh through his lawyer responded without taking issue as to the presence of the containers and the fact that they were his responsibility. This response is an indication that Mr Goh and not Credit Investments had been in possession of the property up to the mortgagee sale. [58] There is no credible evidence before the Court that Credit Investments was in possession of the property until the mortgagee sale. I can place no weight on Mr Goh's unsubstantiated assertions to the contrary. Because there is no evidence that Credit Investments went into possession, it is not necessary to go into any alleged breach of duty by the company in that capacity.Breach of duty to obtain the best price[59] Mr Hickson's submissions for Mr Goh included an allegation that the mortgagee sale arranged by Credit Investments took place at an under-value. The submissions appear to suggest that Mr Miao was in fact beneficially interested in the purchase.[60] This seems to be an entirely baseless submission. I note that Mr Goh has not made any specific criticism of any action taken by the independent real estate agents Barfoot & Thompson during that process. [61] The only point put forward to support this allegation was that Mr Miao's lawyer, Ms Wang, acted for the purchaser. However, Mr Miao produced acknowledgements obtained by Ms Wang signed by him and the purchaser at the mortgagee sale of waiver of any conflicts of interest between him and the purchaser. These confirm Mr Miao's statement in his affidavit that he did not have any association with the purchaser. I do not consider that this is a basis for a defence. It is therefore not necessary to go into the duty of a mortgagee to act in good faith and obtain the best price as there is no evidence that this was not a proper arm's-length mortgagee sale, conducted diligently by Barfoot & Thompson. [62] Nor is there any need to go into the principle relied on by Mr Hickson that a mortgagee may only purchase at a Registrar's sale. There is no evidence that Credit Investments or Mr Miao purchased at the mortgagee sale.Other allegations[63] Mr Goh also made complaints about the fact that he was not remunerated for work he performed in connection with the property, such as organising its subdivision. However, there is simply no contractual basis for Mr Goh to claim entitlement to such monies. Further, he ultimately became the owner of the property, and therefore benefited from any work that he had done.Conclusion[64] The Court must take a robust and realistic approach to an application for summary judgment when the facts warrant it. [65] Mr Goh is asking the Court to go behind the plain words of a term loan agreement as to the amount of the advance. This was part of a commercial agreement drafted by solicitors. Mr Goh's lawyers were actively involved innegotiating its terms. Three drafts were exchanged before the final version was settled on. The attention of Mr Goh or his advisers was expressly drawn to the schedule setting out the amount to be included as part of the advance. Both sides referred to the need to confirm this figure. On the face of the correspondence, that amount was accepted both at the time of the signing of the loan agreement and thereafter and it was not contested until the issue of the proceedings. [66] Mr Goh made no allegation of non est factum or indeed mistake in relation to the term loan. Mr Goh made no attempt to explain why he signed the document in the circumstances, except for his assertion that he trusted Mr Miao. Such trust is not reflected in the terms of the correspondence, the negotiations that took place, or indeed in the fact that a term loan agreement was required. [67] In general terms Mr Goh's complaints lack credibility. He had been represented by lawyers in the period following the execution of the term loan agreement but had not made any complaint about the matters that he now raises. The complaints were only raised just prior to the summary judgment hearing, where they stopped summary judgment being entered against him. The complaints are very general, and not corroborated. [68] Despite Mr Goh's assertions to the contrary, there are no indications of any misrepresentations in the material before the Court. Nor is any misconduct by Credit Investments indicated either in the period leading up to the agreement, or in the period leading up to the mortgagee sale. [69] I therefore conclude that Mr Goh has no defence to the claim.Result[70] Judgment is entered for the plaintiff against the defendant in the sum of $669,603.25. Interest on this sum from 13 December 2007 is to be paid at 22 per cent per annum to the date of judgment.[71] The defendant is to pay the plaintiff's costs on a 2B basis.. Asher J