J A WALLACE V BANK OF NEW ZEALAND HC AK CIV 2009-404-003534

J A WALLACE V BANK OF NEW ZEALAND HC AK CIV 2009-404-003534 1 July 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-003534BETWEEN JANINE ANN WALLACE Plaintiff AND BANK OF NEW ZEALAND Defendant Hearing: 24 June 2009 Appearances: C Bright for the Plaintiff C C H Allan for the Defendant Judgment: 1 July 2009 at 4:00pm Reasons: 1 July 2009JUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie On 1 July 2009 at 4.00 p.m. pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Johnston Pritchard Fee & Partners, P O Box 1115, Auckland 1140 Grove Darlow & Partners, P O Box 2882, Auckland[1] The plaintiff – Ms Wallace – sought an interim injunction restraining the defendant – the Bank of New Zealand ("BNZ") – from completing the transfer of a property owned by her known as Apartment 52 and situated in Shed 24, Princes Wharf, 143 Quay Street, Auckland. The apartment was mortgaged to the BNZ and it was seeking to exercise its power of sale as mortgagee [2] Ms Wallace initially sought leave to apply for an interim injunction prior to commencing the substantive proceedings. Leave in that regard was granted by Ronald Young J on 15 June 2009. His Honour directed that Ms Wallace should file her statement of claim by 16 June 2009, and that occurred. His Honour also made an interim order restraining the BNZ from completing a transfer of the apartment until 10.00am on 25 June 2009, and the BNZ was required to file any notice of opposition and supporting affidavits by 19 June 2009. It did so. The matter was set down for hearing on Wednesday 24 June 2009 to allow the Court to consider the merits of the plaintiff's application for an interim injunction to prevent the transfer of the apartment. [3] That hearing proceeded before me and I heard comprehensive submissions from counsel for the parties. I am grateful to them for those submissions. I then considered the position overnight and read and/or re-read a number of the materials which had been put before me. On the morning of 25 June 2009 at 9.30am, I set aside the injunction granted by Ronald Young J and declined Ms Wallace's application for an interim injunction. I indicated to the parties that my reasons would follow in writing. I now proceed to give those reasons.Background[4] The address of the apartment has been noted above. It is on the sixth floor of the Shed 24 building. It overlooks the inner harbour and it is described as being a luxury apartment in the minimalist style. It has three bedrooms and reasonably large exterior decks. It has won various awards. It is Ms Wallace's home. She purchased it in November 2006 for a purchase price of $1,450,000. To enable her to complete the purchase, she borrowed $1,350,000 from the BNZ and granted a first mortgage over the apartment in its favour.[5] The BNZ has also made various other loan advances to Ms Wallace. She has six banking facilities in place. All advances are secured by collateral mortgages not only over the apartment but also over two lifestyle properties owned by Ms Wallace, one in Whitford and the other in Mangatawhiri. All loans and securities are fully collateralised and each mortgage is security for all advances. [6] As at 17 June 2009 the principal and capitalised interest and costs owing by Ms Wallace to BNZ was $2,750,285.89. Interest was accruing at the rate of approximately $15,264 per calendar month. [7] It is apparent from the papers that Ms Wallace has had difficulty servicing her borrowing from the BNZ for some time. It is not altogether clear when this difficulty started, but as from February 2008, a Ms Ramsey, who is the BNZ's Manager of Strategic Business Services, was taking an active interest in Ms Wallace's file. At that point Ms Wallace was in breach of her financial obligations to the BNZ to the extent of $39,549.06. Monthly term loan instalments were running at $20,000 per month, and as far as the BNZ could see, Ms Wallace's business as principal of a real estate firm was generating no or minimal income. The BNZ expressly advised Ms Wallace that it required her to meet her loan obligations in accordance with the various loan documents she had signed. Ms Wallace promised that payments would be made but that did not occur. There were various meetings thereafter, and the BNZ clearly intimated to Ms Wallace at an early stage and on more than one occasion that it would if necessary commence the process of enforcing the securities and issue Property Law Act notices. [8] Ms Wallace defaulted on other payments which were due to be made by her. On various occasions the BNZ has had to pay rate arrears on one or more of the mortgaged properties to preserve its securities. Further, the apartment is on a leasehold title and Ms Wallace defaulted in the payment of the ground rent. She also failed to meet her share of the operating expenses. The BNZ had to pay the sums demanded to preserve its security. [9] The overall debt was large and through much if not all of 2008 Ms Wallace was in arrears. The BNZ initially advised Ms Wallace that she needed to sell one ofher properties, and that she needed to be aggressive to meet the market. This did not happen and the situation continued to deteriorate. Subsequently the BNZ advised Ms Wallace that she needed to sell at least two of her properties. On more than one occasion the BNZ threatened and then prepared Property Law Act notices. It had some difficulty affecting service and in October 2008 it applied to the District Court for an order for substitute service. [10] Some progress was made by Ms Wallace in reducing the arrears outstanding during the latter part of 2008. As at the end of October 2008, total arrears were $87,676.57. On 15 December 2008 Ms Wallace arranged the payment of these arrears. Monies were made available by her brother and Ms Wallace also borrowed money from another lender. In doing so it seems that Ms Wallace pledged as security one of the properties mortgaged to the BNZ, thereby breaching a term of the BNZ mortgage, but nothing particularly turns on this. The greater difficulty from Ms Wallace's perspective was that as at 15 December 2008 further arrears of some $27,203 had accrued, and the payments she arranged did not clear all arrears then owing. [11] No further payments in reduction of the amounts owed to BNZ have been made by Ms Wallace since 15 December 2008. Arrears have continued to accrue. [12] On 15 January 2009, Ms Ramsey instructed the BNZ's solicitors to issue a further Property Law Act Notice. On a number of occasions Ms Ramsey contacted Ms Wallace and asked her to uplift the notice from the offices of BNZ's solicitors. As I understand it, this was at Ms Wallace's request to avoid any embarrassment that might be caused by affecting personal service on her. Eventually she did uplift the notice, and the notice was served on 28 January 2009. It demanded payment of the sum of $47,392.98 being the arrears then due and owing, and it required that the default be remedied on or before 5 March 2009. It warned that if the default was not remedied, then all amounts secured by the mortgages would become payable, and could be called up. It also noted that the BNZ's rights to enter into possession, and to sell the mortgaged properties, would become exercisable.[13] Ms Wallace was also given advice to this effect by Ms Ramsey in emails sent on 24 February 2009 and on 4 March 2009. [14] On 5 March 2009, the solicitors then acting for Ms Wallace sent a letter to the BNZ, advising that Ms Wallace would be able to satisfy her liability to the BNZ on 6 March 2009 from commission she was due to receive from the sale of a property. However no payment was made to the BNZ. [15] On 11 March 2009, the BNZ issued a formal demand calling up all facilities secured under the mortgages. The total amount demanded was $2,661,411. Unfortunately there was a typographical error contained in the notice. It recorded that one of the accounts was in debit to the extent of $87,000. The correct amount should have been $287,000. The total amount called up by the BNZ was however correctly stated, and counsel were agreed that for present purposes nothing turns on this error. [16] The BNZ then instructed a Mr Gubb and a Mr Ritchie of Bayleys Real Estate to market and sell the apartment. On 27 March 2009, Ms Ramsey wrote to Ms Wallace in this regard advising her that the BNZ's right to sell had arisen, that it had instructed Messrs Gubb and Ritchie to market the apartment by tender, and requesting Ms Wallace's co-operation. She provided Ms Wallace with contact telephone numbers for both Mr Gubb and Mr Ritchie. [17] On 30 March 2009, Messrs Gubb and Ritchie presented a marketing proposal to the BNZ. They proposed a four week marketing campaign, with advertisements appearing in a specialist Bayleys' property magazine known as "Preview", in the New Zealand Herald, the Herald on Sunday, and the Property Press. It was also proposed that the property be advertised on Bayleys' internet site, and on an international internet database maintained by an entity with which Bayleys has a business relationship. The total marketing budget was $4,734, exclusive of GST. [18] Between 7 April 2009 and 21 April 2009, the agents endeavoured to gain access to the apartment to photograph the same. It is common ground that Mr Ritchie and the photographer did not get access to the apartment until either 21 or22 April 2009. Mr Ritchie was then shown the apartment by Ms Wallace. There are disputes in the affidaivts: a) as to whether or not Ms Wallace told him that there were only two bedrooms, b) whether Mr Ritchie should have appreciated that there were in fact three bedrooms. c) what Ms Wallace said about the size of the apartment. I cannot resolve these disputes in the present context. [19] Initially Ms Wallace agreed to allow weekly open home days so that the apartment could be viewed by prospective purchasers. This offer was withdrawn a short time thereafter because Ms Wallace was upset at the first advertisements which appeared for the apartment. I deal with the advertisements below. [20] At much the same time the BNZ was requesting access to the apartment for its valuer. It made a large number of requests to Ms Wallace in this regard. Access was denied. As a result, Mr Ritchie had to prepare copy for the marketing programme without the benefit of a valuer's report. [21] On 7 May 2009, Ms Ramsey sent an email to Ms Wallace advising her that the BNZ would continue the process of selling the property and that unless she co- operated, the BNZ would not be able to realise the best possible price. In the end, Mr Ritchie and prospective purchasers were not given access to the apartment again until the afternoon of 28 May – the afternoon that tenders closed. [22] The marketing programme commenced on 30 April 2009. It closed four weeks later on 28 May. The Bayleys' advertising campaign included the following:• Coverage on two international property websites.• Coverage on three New Zealand property websites, including "Trade Me".• Four quarter-page advertisements in the Property Press.• One advertisement in the Bayleys' Preview magazine in colour, recirculated as a colour flier in the Herald newspaper.• Four one-eighth page advertisements in colour in the Herald.• Four one-twelfth page advertisements in colour in the Herald on Sunday.• Coverage on Bayleys' website and direct market advertising to Bayleys' buyer database.• Direct marketing through an entity known as Compass, which has an E-book site. [23] Copies of some of the advertisements were exhibited by Ms Wallace. The first advertisement appeared in the New Zealand Herald on 2 May 2009. It describes the property as a 2-bedroom apartment, approximately 170 m 2 in size. The property was similarly described in an advertisement in the Property Press which appeared on 14 May 2009, and in the Weekend Herald on 16 May. All of the advertisements appeared under the banner "Mortgagee Tender" or similar. Three internet sites described the apartment in similar terms and also said that it was on the 5 th floor. [24] Ms Wallace complained to the BNZ on 4 May 2009. She had clearly seen the advertising at that stage because she complained about the use of the banner "mortgagee tender". She did not, however, then suggest that there was any error regarding the description of the apartment in the advertisements. [25] Ms Wallace in her affidavit in reply does state that she had telephoned the Bank and advised them of the errors and mistakes that she says were present in the advertising. There is again a dispute on the facts. Ms Ramsey asserts that the Bank was not put on notice of the alleged misdescriptions until she received the email from Ms Wallace on 15 May 2009 referred to in the next paragraph. Again I cannot resolve this dispute.[26] On 15 May 2009 Ms Wallace sent an email to the BNZ. She complained about the advertising campaign, and asserted that the apartment had three double bedrooms, that it had a total area of 215 m 2, and that it was located on the sixth floor. She also asserted that it had been agreed that there would be no reference to the sale being at the mortgagee's behest. [27] In the Property Press on 21 May the property was again advertised as being 2-bedroom, 170 m 2 apartment. However, in the Weekend Herald on 23 May it was described as comprising approximately 215 m 2 and having two bedrooms plus a study. There was an express reference to the spacious decks. Much the same advertisement appeared in the Sunday Herald on 24 May 2009. However, in theProperty Press on 28 May it was again described as a 170 m2 apartment with two bedrooms. Advertising on some of the websites was altered. On others there was no change. [28] The tender period closed on 28 May. Ms Wallace sent an email at 10.00 a.m., on that day, offering to allow interested tenderers the opportunity to inspect the apartment at 1.00 p.m. that day. One couple, who had lodged a tender, took advantage of that opportunity. [29] Five tenders had been received by 4.00 p.m. on 28 May. The amounts tendered ranged from $400,000 to $672,000. The highest was from a client introduced by an agent employed by Barfoot & Thompson. That agent had earlier contacted Mr Ritchie who had agreed to enter into a co-agency arrangement if she could effect a sale of the apartment. Mr Ritchie had given her the full and corrected description of the apartment on 19 May 2009. [30] Tenders were irrevocable for a five working day period. During this period Bayleys negotiated with the highest tenderers. It offered them inspections of the property. By the time tenders closed at 4.00 p.m. on 4 June 2009, two tenderers had inspected the property, and the Barfoot & Thompson client had advised that he did not wish to inspect. The highest tender then received was from a Mr Regan in the sum of $705,000. It was accepted by the BNZ. The next highest tender was from the Barfoot & Thompson's client at $701,100. After acceptance by the Bank of thetender from Mr Regan, the offer from Barton & Thompson's client was increased to $709,000, but by the stage it was too late. [31] The Bank then entered into a sale and purchase with Mr and Mrs Regan as the successful tenderers. The agreement fell for settlement on 25 June 2009.The valuation evidence[32] There are three valuations before the Court. [33] The first valuation was obtained by Ms Wallace from a Mr Taylor. It is dated 12 March 2009. Mr Taylor recorded that the apartment had a measured floor area of approximately 171 m 2 , and that it was accompanied by decks to both its western and eastern ends totalling 38.7 m 2 . He referred to market considerations, and in particular noted that the Auckland residential property market was at the time experiencing significantly slower market conditions. He noted that this had resulted in falling prices. He concluded that as at 11 March 2009 the apartment had a current market value of $1,250,000. This included a carpark which was apparently held on a separate licence, which was not part of the leasehold unit title for the apartment and which was not included under the security documentation held by the BNZ. Mr Taylor's mortgage recommendation was $575,000 – being 50% of the lending margin for a leasehold property, and after allowing for the deduction of the value of chattles and the value of the carpark lease. [34] There is nothing in the affidavits to suggest that this valuation was made available by Ms Wallace to the BNZ. [35] The BNZ obtained its own valuation midway through its marketing programme. It was prepared by a Mr Swan. Mr Swan had been able to inspect the exterior of the apartment, but BNZ had not been able to arrange for time to have access to the interior of the apartment. Mr Swan proceeded on the understanding that the floor area of the apartment was slightly in excess of 170 m 2, and noted that this area excluded the two balconies which had a combined area of approximately 38.5 m 2 . He also noted that market conditions had altered, and that the buoyant stateof the real estate market, experienced in earlier years, had dissipated. He advised that there was uncertainty associated with the property market, that buyers were cautious, and that many in the marketplace were seeking bargains. Mr Swan valued the property as at 18 May 2009. He valued its current market value at $1m under normal market conditions. On a forced sale basis, he concluded that its estimated value was $600,000. [36] The last valuation was one obtained by the ultimate purchasers – Mr and Mrs Regan. It values the property as at 17 June 2009. The valuer, a Mr MacKisack, noted that the apartment had a net living area of approximately 171 m 2 plus decking of approximately 38 m 2 . He also had not been able to inspect the interior of the apartment. He noted the downturn in the market. He noted that the later part of 2008 and early 2009 had seen a continuation of the property slowdown, with a further decline in sales volumes and sale prices. On an open market basis, he concluded that the property was valued in the range of $800-$850,000. On a mortgagee sale basis, he assessed the property of having a value of between $670,000 and $720,000.Ms Wallace' application[37] Ms Wallace is seeking an interim injunction to stop settlement of the sale. The principles applied by the Courts in such contexts have been considered on many occasions, notably, in American Cyanamid Co v Ethicon Ltd [1975] AC 396, and by the Court of Appeal in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd[1985] 2 NZLR 140. I must ask myself, first, whether there is a serious question to be tried in the proceeding and, secondly, where the balance of convenience lies. These two matters are not exhaustive and there may well be other factors I should take into account. a) Is there a serious question to be tried?[38] The statement of claim filed by Ms Wallace seeks to raise four causes of action.[39] First, it asserts that the BNZ is in breach of its obligation under s 176 of the Property Law Act 2007, in that it has not taken reasonable precautions to obtain the true market value of the property. In particular, it is asserted: a) That the marketing campaign was too short. b) That the marketing campaign was unsophisticated. c) That the marketing campaign was error-ridden. It is asserted that these shortcomings have resulted in a sale at an undervalue. It is pleaded that that undervalue cannot be properly compensated in damages, because the sale will result in a massive shortfall, the Bank will inevitably have recourse to the other two properties owned by the plaintiff which are unlikely to make up the shortfall, and as a result Ms Wallace will be adjudicated bankrupt. [40] The second cause of action alleges breach of an obligation to act in good faith, seeks an injunction to stop the sale, and an order setting aside the sale and restoring to Ms Wallace the equity of redemption. [41] The third cause of action - as presently pleaded - is not obviously a separate cause of action and, in any event, it is not relevant for present purposes. It seeks to set aside or invalidate the BNZ's notice of demand. [42] The fourth cause of action seeks damages. It does not appear to be a cause of action in its own right. Rather, it appears to be alternative relief under the first and perhaps the second causes of action. [43] The second cause of action alleges that the BNZ has breached a duty of good faith owed to Ms Wallace. I accept that the power of sale conferred on a mortgagee must be exercised in good faith for the purpose of obtaining repayment of the moneys secured by the mortgage – see Downsview Nominees Ltd v First City Corporation Ltd [1993] 1 NZLR 513. There was, however, nothing in the affidavits filed to suggest that the BNZ has used the power of sale for any improper purpose, and accordingly I take this issue no further.[44] The arguments of both parties focussed very largely on whether or not Ms Wallace can satisfy the Court that her claim that the BNZ breached s 176 of the Property Law Act is not frivolous and vexatious, and that there is a serious issue to be tried. The section provides as follows:Duty of mortgagee exercising power of sale(1) A mortgagee who exercises a power to sell mortgaged property, including exercise of the power through the Registrar under section 187, or through a court under section 200, owes a duty of reasonable care to the following persons to obtain the best price reasonably obtainable as at the time of sale: (a) the current mortgagor: ...[45] The section replaces s 103A of the Property Law Act 1952 and reaffirms the scope of the duty of care discussed in such well known decisions as Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] 2 All ER 633 at page 646 per Salmon LJ. [46] Ms Wallace's assertion that the BNZ breached the duties owed under s 176 had a number of aspects. [47] First she criticised the BNZ for an inadequate marketing campaign. She suggested in her evidence a much more extensive marketing campaign which she considered would better flush out prospective purchasers. [48] I am not satisfied that there is anything in this particular criticism. The duties owed by a mortgagee to a mortgagor do not detract the mortgagee's right to decide for itself if and when to sell. Here the BNZ decided to sell the mortgaged property. It took advice about the appropriate marketing campaign. It did so from an established firm of real estate agents experienced in mortgagee sales. The evidence suggested that a 4-week campaign is not atypical in mortgagee sale situations. The apartment was extensively advertised, both inside and, by way of the internet, outside New Zealand. There was independent evidence from a strategic marketing expert to the effect that the nature and extent of the marketing campaign was appropriate to "shake out any interested buyers". Therefore I cannot conclude thatthere is any serious question to be tried that the marketing campaign was too short, or that it was unsophisticated. [49] Secondly, Ms Wallace asserts that the marketing campaign was error-ridden. Here she is on stronger ground. It is clear from the affidavits filed that there were errors in a number of the advertisements. The apartment was described as being on the 5th floor in some advertisements when it is in fact on the 6th floor. It was described as having two bedrooms, when it has three bedrooms. It is arguable that its area was misstated, although that is not altogether clear on the papers filed. In particular, I note that two of the three valuers proceeded on the basis that the apartment had a net area of 171 m 2 or thereabouts. [50] If a mortgagee decides to sell, then reasonable care must be taken to obtain the best price reasonably obtainable for the property. Generally, a mortgagee must take all reasonable steps to ensure that a sale by the chosen method is as successful as possible. In particular, care should be taken with the advertisement and the description of the property - see e.g. Earlston Farms Ltd v Trusteebank Wanganui(1986) 2 NZCPR 528. Here it is doubtful that the property was correctly advertised. [51] There can be, however, no objection to the sale being advertised as a "mortgagee tender" – see Taylor & Anor v Westpack Banking Corporation [1996] 5 NZBLC 104,104 - and once a tenderer asked for the tender document in order to submit a tender, ipso facto the existence of the mortgagee, and its control of the sale and proceeds of sale would have been revealed - see Westpac Banking Corporation v Highfield HC CHCH CP 112/00, 7 March 2001. [52] This last issue aside, I am satisfied that there is a serious question to be tried that the BNZ did not correctly advertise the apartment and that the various errors that occurred may have confused prospective tenderers. [53] Thirdly, Ms Wallace argues that the BNZ has entered into the agreement to sell the apartment at an undervalue. She has to do so because for breach of the s 176 duty to be actionable, there has to be proof of damage – Apple Fields Ltd v Damesh Holdings Ltd [2004] 1 NZLR 721 at [22].[54] The duty imposed by s 176 is a duty of reasonable care to obtain the best price reasonably obtainable at the time of sale. It is a duty to take reasonable care, and it does not necessarily follow that the best price reasonably obtainable will in fact be achieved - see Agio Trustees Company Ltd & Anor Ltd v Harts Contributory Mortgages Nominee Company Ltd (2001) 4 NZ ConvC 193,480. The best price reasonably obtained at the time of sale will often be the current market value of the property – see Downsview Nominees Ltd and Harris v ANZ Banking Group (NZ) LtdCA165/01, 10 June 2002 at [16]. However, in some cases, a forced sale value may be the best price reasonably obtainable – see Westpac Banking Corporation v Chisholm HC AK CIV 2006-404-3230 27 April 2007 at [19]. The fact that a mortgagee obtained a price less than the current market value assessed by valuers does not, of itself, establish a breach of duty – see Moritzson Properties Limited v McLachlan & Anor (2000) 9 NZCLC 262,448 at [61]. [55] Here I cannot conclude that there is a serious question to be tried that the apartment has been sold at an undervalue. The circumstances, as at the time of sale, have to be examined. First, the property market was in serious decline; buyers were few and far between; prices being obtained for properties, and apartments in particular, were dropping significantly. Secondly, the apartment here in issue had a number of peculiar features which did not assist. It is on a leasehold title. The ground rent was subject to review every five years with the next rent review due in September 2010. Thirdly, the wharf on which the apartment is situated is in a port operational area. Owners have covenanted that they will be subject to nearby uses. Fourthly, the apartment did not have a carpark. Any purchaser would have to enter into their own arrangements in that regard. Finally, Ms Wallace was being obstructive and she would not allow prospective tenderers access until the very last moment. [56] What is required is an assessment of what is the best price that is reasonably obtainable for the property at the time of sale, if it is sold by the mortgagee in compliance with its duties under the Act. On the valuation evidence, it cannot be said there has been a sale at an undervalue. The evidence simply suggests that the BNZ has sold the property at less than its assessed current market value but, in my view, such a discount was what one would expect in the circumstances of this casewhere a forced sale took place in difficult economic times, when the market was depressed, and without the cooperation of the mortgagor. [57] I do bear in mind that each of the valuers accurately described the property, and was aware of what it offered. Each knew that it had three bedrooms, and large decks, and that it was on the sixth floor of the Shed 24 building. Their valuations were not affected by any inaccuracies in the BNZ advertising. The price achieved is consistent with the forced sale valuations of two of them, and is not out of line when considered against the mortgage recommendation of the third. [58] I conclude that there is a serious question to be tried in regard to the accuracy of the advertising undertaken by the BNZ through its agents, but I cannot conclude on the materials available that there is a serious question to be tried that such errors as occurred have had any monetary consequence sounding in damages. b) Balance of convenience[59] In my judgment, the balance of convenience weighs heavily in favour of the BNZ. [60] The Bank is owed in excess of $2,750,000 by Ms Wallace. On the face of it, Ms Wallace would appear to be insolvent. She has not met her obligations to the BNZ. Moreover, the evidence before me established that she has not met other commitments she has. As a result, her undertaking as to damages is, to all intents and purposes, worthless. Further, she is not in a position to pay either to the BNZ or into Court the interest arrears outstanding and owing to the BNZ. In such situations, it will frequently be the case that no injunction should issue - see Development Consultants Ltd v Lion Breweries Ltd [1981] 2 NZLR 258 at 270. [61] Ms Wallace is seeking that the BNZ should be restrained from settling the sale, and that there should be a further marketing programme, lasting at least for another 8-week period. She also suggested a 4-week cooling off period to allow the market to settle. Any marketing campaign would no doubt be followed by a 4-week period before settlement could occur. These delays would increase significantly theamounts outstanding and owing to the BNZ. The BNZ indicated (on the basis of a 12-week delay) that the interest outstanding would increase from $156,000 owing as at the date of hearing, to a total of $216,654.65. If the period of delay is 16 weeks, then the amount owing will be even greater. [62] The advertising campaign advocated by Ms Wallace is estimated to cost somewhere between $10,000 and $30,000. There is nothing to suggest that Ms Wallace has the funds available to meet the costs of the campaign she would prefer. The effect of granting an injunction in the terms sought by Ms Wallace would be to compel the BNZ to make further advances under its loan securities for the costs of the advertising campaign. I do not consider that that is appropriate. [63] The position of Mr and Mrs Regan, as the successful tenderers, must be considered. There is no suggestion that they are in any way involved or implicated in any breach of duty by the BNZ (assuming that there has been a breach of duty). They are innocent third parties and their rights under the agreement for sale and purchase would be prejudiced if any injunction were to be granted. I am aware that there is a clause in the agreement for sale and purchase under which the contract can be avoided if an injunction is issued by the Court. That fact, however, does not detract from the base proposition that the interests of innocent party purchasers should not be ignored. [64] Moreover, if an injunction were to be granted, there must be a serious risk that the present sale negotiated with Mr and Mrs Regan would be lost. That would be unfortunate, given the current state of the property market. The parlous state of the market is referred to by each of the valuers in their respective valuations and it is noteworthy that the later the valuation, the lower is the assessed market value. In my judgment, there is much to be said for the old adage that "a bird in the hand is worth two in the bush". [65] Finally, in this context, I note that if the BNZ is ultimately found to have breached the duties it owed to Ms Wallace under s 176, and if that breach is found to have resulted in a sale at an undervalue, then damages are an adequate alternative remedy. Any damages can be relatively readily assessed – indeed, Ms Wallace hasalready detailed her assessment of what she says is her loss in her statement of claim. There can be no doubt that the BNZ is capable of meeting any award made against it. Even if a breach of duty can be established, it does not go to the question of the BNZ's right to sell, but only to the amount obtained as a result of the exercise of right. In my judgment, any error in the advertising which has occurred is not a ground for preventing the sale from being completed. Any failure to obtain a higher price can be really compensated for by an award of damages - see Bevin & Anor v Public Service Investment Society Ltd & Anor (1994) 2 NZ ConvC 191,821; Bhana & Anor v Westpac Banking Corporation (2003) 4 NZ ConvC 193,794 and Ko and Jong v Tea Custodians (Equitable) Ltd (2006) 7 NZCPR 108.Other factors[66] I am satisfied that it is in the interests of justice that no injunction should issue. Ms Wallace had every opportunity to regularise her loans, and to sell the apartment and the other two secured properties herself. She did not do so. This is a case when neither the obligations owed by Ms Wallace, nor the BNZ's right to sell are impugned. The Bank is entitled to exercise the rights vested in it. In effect, Ms Wallace is seeking an indulgence and further time within which to re-market the property. There is little if anything to suggest that any further marketing programme would be more successful, and there is nothing to suggest that Ms Wallace can either pay the amount outstanding and owing to the BNZ to clear her interest arrears, or meet the costs involved in any further marketing campaign.Conclusion[67] For the reasons I have set out, the interim order made by Ronald Young J is set aside, and Ms Wallace's application for an interim injunction is declined. Wylie J