New Zealand Case Law: Decisions & Judgments

Topic

Equity of redemption

Legal area

Court

26 Jul 2022

TANIRAU v TANIRAU [2022] NZHC 1792

Citation

[2022] NZHC 1792
Court

High Court

Section 115 applies only where a mortgage secures periodical payments (other than interest); because the mortgage in question does not secure periodical payments the Court had no jurisdiction under s115 to order payment into court of the principal to obtain a s116 certificate and therefore the relief sought must be dismissed despite the applicant being entitled to redeem on payment of the outstanding principal.
13 Jul 2021

MASON v MCKAY and LOGAN [2021] NZHC 1766

Citation

[2021] NZHC 1766
Court

High Court

There was a serious issue to be tried that the receivers' sale might undervalue assets and that the balance of convenience favoured a short intervening extension to enable potential full repayment; the Court could not extend PLA s119 notices to 30 July but could direct the receivers (and Westpac) to grant a short extension until midnight 15 July 2021 and accordingly ordered that extension.
28 Jun 2017

CLEAR WHITE INVESTMENTS LTD v OTIS TRUSTEE LTD [2017] NZHC 1458

Citation

[2017] NZHC 1458
Court

High Court

The court found on the evidence that no concluded common‑intention financing or buy‑back agreement existed; the July 2016 transaction was an outright sale to Otis for consideration of $1,811,463.78, not a loan secured by a transfer of title; CWIL failed to prove facts necessary to establish a constructive trust, estoppel or a CCCF Act credit contract; Chevin lacked credibility and had misled parties about consultants' fees and contamination; accordingly plaintiff's claims were dismissed.
27 Feb 2017

NAPIER v WAIMANA INVESTMENTS LTD [2017] NZHC 265

Citation

[2017] NZHC 265
Court

High Court

There was a serious question to be tried on whether the defendant's conduct was a departure from reasonable standards of commercial practice under s118 CCCFA, but on balance of convenience damages were an adequate remedy and the enforcement process should proceed; nevertheless overall justice warranted a short limited interim injunction (six weeks) to allow trustees to pursue voluntary sale options before defendant could exercise power of sale.
7 Apr 2016

WILLIAM ANDREW CLYDE COLTART V LEPIONKA & COMPANY INVESTMENTS LIMITED [2016] NZCA 102

Citation

[2012] 3 NZLR 36
Court

Court of Appeal

The Court of Appeal held the appellant had an arguable interest in the mortgagor's equity of redemption and therefore the Lepionka mortgagee owed him a duty to act in good faith and to obtain the best price reasonably obtainable; the mortgagee's conduct (acquiring the mortgage in distressed circumstances, adopting vendor contracts, assuming large contingent liabilities, cancelling the appellant's option and refusing market offers) gave rise to an arguable breach and indicated acting for collateral purposes; s 178(2) does not authorise a mortgagee to cancel a contract to which it is not a part…
13 Sept 2012

MASEFIELD MALL LIMITED V GASSON STREET PROPERTIES LIMITED HC CHCH CIV-2012-409-001616

Citation

openlaw-fe99ad7b_4352_4297_aa0a_c20e40cbbed9.pdf
Court

High Court

Clause 21.5 of the Gasson agreement must be construed to preserve the mortgagor's equity of redemption until the settlement date specified in the agreement; the unconditional sale by Masefield to Dragonwood on 1 June 2012 therefore amounted to a sale by "any other party" under cl 21.5(b), permitting Guardian Trust to validly cancel the Gasson agreement on 19 June 2012; Gasson Street failed to demonstrate a reasonably arguable interest to support its caveat and the caveat must be removed.
11 May 2012

PROPST V ANZ NATIONAL BANK LTD HC AK CIV 2012-404-2345

Citation

openlaw-265267d8_9030_4ae9_88f8_36759511bd91.pdf
Court

High Court

Court held the mortgages were all‑obligations charges that secured guarantor liabilities and therefore a default by co‑owners/guarantors triggered the bank's power of sale over the entire fee simple estates; however the s119 notices were invalid because they conflated guarantor demands with the mortgagor default, misstated or failed to set out the true amount required to remedy the mortgage default and improperly required interest payable up to payment date which was not calculable from the notice; accordingly an interim injunction restraining sales was granted and no payment into court was r…
26 Nov 2010

PARIHOA FARMS LIMITED V RODNEY DISTRICT COUNCIL HC AK CIV-2009-404-0537

Citation

openlaw-5278d61b_e487_405c_8779_b2f68378c0b8.pdf
Court

High Court

Section 97 PLA07 applies to encumbrances registered as mortgages; 'all other obligations secured by the mortgage' is to be read broadly to include non‑monetary obligations secured by a rent charge, so the mortgagor cannot redeem by payment of the nominal sum alone while other secured obligations subsist; the encumbrance is indivisible and no partial discharge is warranted; no equitable relief available on these facts.
23 Apr 2010

PARIHOA FARMS LTD V RODNEY DISTRICT COUNCIL HC AK CIV-2009-404-000537

Citation

openlaw-2088aed7_ee84_40ac_a061_104736c0333c.pdf
Court

High Court

Court allowed partial exclusion of the defendant's affidavit evidence: paragraphs 9 and 30–54 and parts of 22 and 23 were excised as inadmissible; established in principle that evidence proving admitted facts is inadmissible and reserved leave to apply about specific paragraphs alleged to be excess; recognised affidavit was in wrong form and required conversion to a written brief; declined to preclude in principle the use of extrinsic evidence to interpret a registered instrument given developing authority, so refused to strike out all remaining contested evidence on relevance at the pre‑tria…
3 Nov 2009

WESTPAC NEW ZEALAND LIMITED V BARNES HC AK CIV-2009-404-6328

Citation

openlaw-13fae87e_d726_4b88_b4b1_1a9dc6c8e694.pdf
Court

High Court

The caveator failed to demonstrate a reasonably arguable registerable interest because no valid tender to redeem was made and any subordinate equitable interest would be cleared by the mortgagee sale; alleged breaches by the mortgagee do not justify preserving the caveat and can be pursued separately, therefore the caveat must be removed.