KING & ANOR V ASB BANK LIMITED HC CHCH CIV-2011-409-000304

KING & ANOR V ASB BANK LIMITED HC CHCH CIV-2011-409-000304

The interim injunction was refused because, although a serious question to be tried exists (threshold passed), the balance of convenience and overall justice decisively favored the defendants: there was an unconditional above‑valuation contract able to settle imminently, plaintiffs' refinancing prospects were speculative and unquantified, there was an absence of income and rapidly accruing liabilities, damages were an adequate remedy and the plaintiffs' undertaking to support damages was weak; receivership appointment showed no serious legal infirmity.

Citation
openlaw-63ae761d_afd9_423d_a623_74821c4cc58a.pdf
Parties
First Plaintiff: Thomas Frederick Mazlin King and Judith Ruth King trading as TFM and J R King Partnership; Second Plaintiff: Thomas Frederick Mazlin King and Judith Ruth King (as trustees for the JR King Family Trust); Third Plaintiff: Thomas Frederick Mazlin King and Judith Ruth King (as trustees for the TFM King Family Trust); Fourth Plaintiff: Kingloch Holdings Limited (in receivership); Fifth Plaintiff: King Lock Farms Limited (in receivership); First Defendant: ASB Bank Limited; Second Defendant: Keiran Anne Horne and David Donald Crichton (as receivers of the Fourth and Fifth Plaintiffs)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 March 2011
Procedural Posture
Civil Banking/contract/receivership With Applications for Interim Injunction and Discovery / Interim Hearing Oral Judgment (application for Interim Injunction Determined)
Outcome
Application for interim injunction refused
Legal Topics
Interim Injunction, Discovery, Equitable Estoppel, Misleading and Deceptive Conduct, Negligent Misstatement, Breach of Loan Agreement, Receivership, Sale of Distressed Assets
Banking Contract Tort Equity Insolvency/receivership Consumer Law Property Interim Injunction +7 more

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Parties

Thomas Frederick Mazlin King and Judith Ruth King trading as TFM and J R King Partnership

First Plaintiff

Thomas Frederick Mazlin King and Judith Ruth King (as trustees for the JR King Family Trust)

Second Plaintiff

Thomas Frederick Mazlin King and Judith Ruth King (as trustees for the TFM King Family Trust)

Third Plaintiff

Kingloch Holdings Limited (in receivership)

Fourth Plaintiff

King Lock Farms Limited (in receivership)

Fifth Plaintiff

ASB Bank Limited

First Defendant

Keiran Anne Horne and David Donald Crichton (as receivers of the Fourth and Fifth Plaintiffs)

Second Defendant

Procedural Posture

Civil Banking/contract/receivership With Applications for Interim Injunction and Discovery / Interim Hearing Oral Judgment (application for Interim Injunction Determined)

Legal Issues

  1. 1 Whether there is a serious question to be tried on plaintiffs' causes of action
  2. 2 Whether the balance of convenience favors granting an interim injunction to restrain sale
  3. 3 Whether overall justice requires granting relief despite other factors

Ratio Decidendi

The interim injunction was refused because, although a serious question to be tried exists (threshold passed), the balance of convenience and overall justice decisively favored the defendants: there was an unconditional above‑valuation contract able to settle imminently, plaintiffs' refinancing prospects were speculative and unquantified, there was an absence of income and rapidly accruing liabilities, damages were an adequate remedy and the plaintiffs' undertaking to support damages was weak; receivership appointment showed no serious legal infirmity.

Court Disposition

Application for interim injunction refused

Orders

  • Interim injunction application dismissed
  • No costs are sought by either defendant on basis that costs are covered by the security documentation