New Zealand Case Law: Decisions & Judgments

Topic

Mortgagee rights

Legal area

Court

17 May 2018

IAG NEW ZEALAND LIMITED v LICHFIELD VENTURES LIMITED (in liq) [2018] NZHC 1092

Citation

[2018] NZHC 1092
Court

High Court

There existed a genuine and substantial dispute as to the existence and quantum of the debt because materially different expert cost estimates (Graham v Weston), untested in trial, left the Court unable to resolve the factual dispute in the summary Companies Act jurisdiction; accordingly the statutory demand was set aside and the dispute is to be resolved at trial.
13 Mar 2018

CHRISTCHURCH RESIDENTIAL RENTALS LIMITED v STANTON [2018] NZHC 406

Citation

[2018] NZHC 406
Court

High Court

The Court was satisfied the plaintiff was validly exercising its contractual rights to transfer the 13 listed properties and therefore made orders appointing the Registrar to sign transfers and protecting mortgagee interests by requiring consent before compromise of insurance/EQC claims and payment of such proceeds to mortgagees until full repayment, with mortgages discharged on settlement.
22 Feb 2018

Re. DAWSON and DAWSON [2018] NZHC 207

Citation

[2018] NZHC 207
Court

High Court

Because the mortgagees had an equitable and secured interest, had been unable to recover their loan, had paid outstanding rates, and all other interested parties either consented or did not object, the Court was satisfied under s119(3) that it was fair to vest the fee simple estates in the applicants and therefore granted the vesting order.
28 Mar 2017

KAYA [2017] NZHC 570

Citation

[2017] NZHC 570
Court

High Court

The applicant qualified as a person suffering loss from the Assignee's disclaimer because the disclaimer eliminated the bankrupt's liabilities while leaving the applicant solely liable for mortgage and outgoings, and the court was satisfied that, having regard to those ongoing liabilities, lack of opposition, and the applicant's opportunity to refinance, it was fair to vest the bankrupt's interest in the applicant under s119(1)(b).
29 Jun 2012

SA MARLOW AND SN MARLOW HC NAP CIV-2012-441-376

Citation

openlaw-0b7c6d34_859c_4948_a1a3_ffb70c611f3c.pdf
Court

High Court

The Court found that it was fair under s119 Insolvency Act 2006 to vest the bankrupt's interest in Mrs Marlow because the Official Assignee had disclaimed the interest, the mortgagee and Crown consented, the vesting would enable an agreed sale to proceed and no party opposed the relief; accordingly a vesting order was granted.
6 Oct 2011

TEA CUSTODIANS (BLUESTONE) LIMITED V TJ BARNETT & ANOR HC WN CIV-2011-485-17

Citation

openlaw-304a921d_06b8_4c07_a252_0412ce739f2f.pdf
Court

High Court

The conditional agreement to defer enforcement did not amount to an unequivocal waiver or estoppel because the plaintiff consistently limited its forbearance to strict compliance with the payment arrangement, the first defendant failed to comply in material respects and committed further serious breaches (notably rates arrears), and therefore there was no real defence and summary judgment for possession was appropriate.
6 Sept 2011

AXA NEW ZEALAND NOMINEES LIMITED V 10 GILMER LIMITED (IN RECEIVERSHIP) HC WN CIV 2011-485-1572

Citation

openlaw-af8c14e7_1b70_4789_9596_ca8c29efe403.pdf
Court

High Court

The Court granted the interim injunctions because AXA demonstrated a serious question to be tried and the balance of convenience favoured preservation of AXA's security: the risk that defendants' transfers and conduct would subvert AXA's securities, unpaid rates and insurance issues, and an outstanding insolvency process made damages an inadequate remedy; defendants faced less risk if receivers continued to run the business pending summary judgment.
4 Jul 2011

MATCHITT V POCOCK HC GIS CIV-2010-416-245

Citation

openlaw-1705653b_bf0e_4aed_b91f_7d4bbe66ef37.pdf
Court

High Court

Judge held the applicant had an arguable caveatable interest both from clause 5 of the will and from a possible constructive trust; therefore caveats over CT 277697 and CT 192407 were ordered to remain (subject to the applicant progressing substantive proceedings) while the caveat over CT 277698 was ordered to lapse only upon specified conditions (proof of Westpac mortgage quantum and undertaking to deposit any sale surplus into solicitor's trust account).
29 Oct 2010

CROWN SOLICITOR OF ROTORUA V WILLIAMS AND ORS HC ROT CIV-2010-463-633

Citation

openlaw-c0906011_0fc8_4dd6_b294_00249c60575e.pdf
Court

High Court

On the material (Detective Shallcrass's affidavit, surveillance, intercepted communications and search results) the Court was satisfied there were reasonable grounds to believe the properties were instruments of crime facilitating qualifying forfeiture offences; accordingly restraining orders under ss 21 and 26 were granted, subject to the registered rights and interests of Westpac New Zealand Limited and the Legal Services Board being excluded, and no indemnity was required at this stage; issues concerning asserted trusteeship/whata to be determined at any forfeiture application.
22 Mar 2010

CROWN MONEY CORPORATION LTD V HERTZKE AND ORS HC AK CIV-2007-404-4943

Citation

openlaw-2ea5b04d_b22f_4467_960f_c3623a00fbab.pdf
Court

High Court

Properties held by Mr and Mrs Hertzke in their capacities as trustees of the M3H3 Trust are not "the bankrupt's property" under s 104 of the Insolvency Act 2006; accordingly s 77 does not prevent Crown from continuing the execution process against those trust-held properties, subject to protective directions to preserve the mortgagee's position and to determine the amount secured by the mortgage at a subsequent hearing.