New Zealand Case Law: Decisions & Judgments

Topic

Mortgage enforcement

Legal area

Court

1 May 2023

WESTPAC NEW ZEALAND LIMITED v CHEN [2023] NZHC 998

Citation

[2023] NZHC 998
Court

High Court

The statutory requirements for adjudication were satisfied and the debtor failed to establish any substantive basis to decline adjudication; co-guarantor payments do not discharge the debtor's liability, the alleged creditor misconduct and claims of unfair practices were unproven or inapplicable, the debtor made no meaningful payments or asset disclosures, and adjudication was therefore ordered.
9 Feb 2023

WELLS v MARSHALL [2023] NZHC 136

Citation

[2023] NZHC 136
Court

High Court

Because the respondent was validly removed prior to the commencement of the Trusts Act 2019 and clause 11 of sch 1 requires vesting to be completed as if that Act had not commenced, and because the court is satisfied it is expedient (on grounds of suitability, practicality and efficiency) to vest the property in the continuing trustees to enable proper administration and address pressing mortgage matters, a vesting order under s 52(1)(h) Trustee Act 1956 is warranted.
15 Dec 2022

ADMIRALTY LODGE MOTEL (2016) LTD v ENA HOLDINGS LTD [2022] NZHC 3426

Citation

[2022] NZHC 3426
Court

High Court

Defendants' misrepresentation defence is not arguable because material matters (resource consent change, Management Agreement and letting agreements) were disclosed contemporaneously and oral assertions were non-actionable or post-contract; only a limited omission re Unit 102 was arguable but any loss attributable to that is minimal (1/18th). The mortgage debt under the Loan Agreement is enforceable and no written waiver was proved. Judgment entered for plaintiff subject to deduction of the retention/wash-up sum and the small unit goodwill share.
7 Nov 2022

BENHAR PROPERTIES LTD v CHURCH [2022] NZHC 2904

Citation

[2022] NZHC 2904
Court

High Court

The contractual deeds executed by the parties and the registered mortgage established that Mr Church (not the Trust) was the creditor and that Benhar and Ellis acknowledged indebtedness and granted security; allegations about the source of funds and cancellation of the guarantee lacked substance; PLA notices were valid (any clerical overclaim was corrected) and delay was not unreasonable; Benhar failed to show a serious question to be tried so interlocutory relief was not available.
8 Aug 2022

COMMISSIONER OF POLICE v ROSS [2022] NZHC 1936

Citation

[2022] NZHC 1936
Court

High Court

The Court granted ancillary orders under s 83 Criminal Proceeds (Recovery) Act 2009 directing the Official Assignee to sell the specified property, empowering the Official Assignee to execute deeds in the name of the registered proprietors, to deduct actual sale costs and repay secured borrowings, and to apply the net proceeds in accordance with s 83 (and s 87) of the Act, and permitting the Bank of New Zealand to sell in consultation with the Official Assignee if the respondents fall two months in arrears on mortgage repayments.
22 Mar 2022

FIRST MORTGAGE CUSTODIANS LIMITED v HERBERT [2022] NZHC 507

Citation

[2022] NZHC 507
Court

High Court

Summary judgment was dismissed because plaintiffs did not establish there were no arguable defences; defendants raised multiple triable issues (settlement effects on interest/costs, linked cross-claim from PLA notices, plaintiffs' alleged breach by not releasing GSA preventing refinancing, arguable duress/undue influence affecting Mrs Herbert with a realistic basis for imputing inquiry to lender, and material variation issues) that are fact‑dependent and unsuitable for determination on affidavit evidence.
7 Sept 2020

BROWNING v JONES [2020] NZHC 2308

Citation

[2020] NZHC 2308
Court

High Court

The plaintiff was entitled to summary judgment for repayment of the principal sum of $394,800 because the deed and mortgage were valid, the cause of action accrued within the 12 year limitation for deeds, the defendant offered no evidence to support waiver or estoppel and the mortgage expressly required written waiver; default interest is recoverable but limited by the six year limitation on arrears of interest to $284,256; an order under s 339 Property Law Act 2007 for sale of the co-owned property is appropriate on the evidence, but detailed directions for marketing and distribution cannot…
22 Jul 2020

THE STARK TRUSTEES LIMITED & ORS v BRIDGEWEST FINANCE (NEW ZEALAND) [2020] NZHC 1775

Citation

[2020] NZHC 1775
Court

High Court

The interim injunction was refused because the applicants demonstrated a serious question to be tried but the balance of convenience favoured the respondent: delay in marketing would likely cause greater prejudice given the size and duration of the debt and uncertain market conditions, and the respondent undertook not to enter into any binding sale contract until the substantive matter is determined.
15 Mar 2019

WILKINS v WILKINS [2019] NZHC 458

Citation

[2019] NZHC 458
Court

High Court

The court removed the administrator because the respondent was not taking necessary steps to preserve or realize the estate's principal asset, creating mortgage arrears and a real risk of enforcement; vesting the property in the continuing trustees was necessary and appropriate to facilitate vacation and sale to discharge the mortgage and protect beneficiaries; the applicant demonstrated intention and ability to administer the estate and costs of the application were properly charged to the estate.
5 Mar 2019

HAINES v HERD [2019] NZHC 342

Citation

[2019] NZHC 342
Court

High Court

The Court held the VBSA was admissible in New Zealand, the parties had agreed all essential terms (land by value with Herd to nominate), s40 writing requirement satisfied, Herd was in default and Haines properly issued notice and repossessed the vessel, Clause 9 provided primary remedy sequence but was not exclusive of common law damages, Haines was not required to sell mortgage land before claiming shortfall, plaintiffs acted reasonably to mitigate, and both Herd and guarantor Rhumba are liable for the shortfall, contractual interest and certain specified costs.