J A WALLACE V BANK OF NEW ZEALAND HC AK CIV 2009-404-003534
The Court set aside the earlier interim order and declined the plaintiff's application because she failed to establish the required test for an interim injunction (no sufficient serious question to be tried and the balance of convenience did not favor restraint of the mortgagee sale).
Source-derived case information.
- Citation
- openlaw-bba8829a_f14b_42b2_8e2f_559435b5cb77.pdf
- Parties
- Plaintiff: Janine Ann Wallace; Defendant: Bank of New Zealand
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 25 June 2009
- Procedural Posture
- Civil Interim Injunction / Interlocutory Hearing for Interim Injunction
- Outcome
- Application for interim injunction declined; earlier interim injunction set aside.
- Legal Topics
- Power of Sale, Interim Injunction, Mortgage, Restraint on Transfer, Leave to Apply
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janine Ann Wallace
Plaintiff
Bank of New Zealand
Defendant
Procedural Posture
Civil Interim Injunction / Interlocutory Hearing for Interim Injunction
Legal Issues
- 1 Whether an interim injunction should restrain completion of a mortgagee sale transfer
- 2 Whether the plaintiff satisfied the test for interlocutory injunctive relief (serious question to be tried and balance of convenience)
- 3 Whether prior leave and interim orders should be maintained
Ratio Decidendi
The Court set aside the earlier interim order and declined the plaintiff's application because she failed to establish the required test for an interim injunction (no sufficient serious question to be tried and the balance of convenience did not favor restraint of the mortgagee sale).
Court Disposition
Application for interim injunction declined; earlier interim injunction set aside.
Orders
- Interim injunction granted by Ronald Young J set aside
- Plaintiff's application for an interim injunction dismissed
Full Case Text
Judgment text and source record
1 paragraphs
J A WALLACE V BANK OF NEW ZEALAND HC AK CIV 2009-404-003534 25 June 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-003534BETWEEN JANINE ANN WALLACE Plaintiff AND BANK OF NEW ZEALAND Defendant Hearing: 25 June 2009 Appearances: C Bright for the Plaintiff C C H Allan for the Defendant Judgment: 25 June 2009[ORAL] JUDGMENT OF WYLIE JSolicitors: Johnston Pritchard Fee & Partners, P O Box 1115, Auckland 1140 Grove Darlow & Partners, P O Box 2882, Auckland[1] The plaintiff – Ms Wallace – seeks 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 has sold the property as mortgagee in the exercise of its power of sale. [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. He directed that Ms Wallace should file her statement of claim by 16 June 2009, and that has 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 has done 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 settlement of the sale. [3] I have heard comprehensive submissions from counsel for the parties. I am grateful to them for those submissions. I considered the position overnight and read and/or re-read a number of the materials put before me. I set aside the injunction granted by Ronald Young J and decline Ms Wallace's application for an interim injunction. My reasons will follow in writing at the earliest practical opportunity. [4] No application for costs was made by the BNZ. I was advised that they are covered by the mortgage security. Accordingly, there will be no order for costs. Wylie J