New Zealand Case Law: Decisions & Judgments

Topic

Solicitor's certificate

Legal area

Court

9 May 2016

MIKITASOVA v ASB BANK LIMITED [2016] NZHC 897

Citation

[2016] NZHC 897
Court

High Court

There was a serious question to be tried on whether the plaintiff was unduly influenced and whether ASB was on enquiry, but on the balance of convenience and overall justice the interim injunction was rescinded because damages would be an adequate remedy, the bank had enforceable steps and rights to sell the mortgaged section, and the plaintiff failed to show irreparable or unquantifiable harm warranting continued interim relief.
14 Mar 2013

COLLEY v WESTPAC NEW ZEALAND LIMITED CA531/2012 [2013] NZCA 57

Citation

(2013) 13 TCLR 639
Court

Court of Appeal

Summary judgment against Mr Colley was correctly entered because he had no arguable defence of oppressive conduct; summary judgment against Mrs Colley was also warranted because the guarantees expressly covered existing and future indebtedness, she had solicitor's certificate and acknowledgements, and Westpac's actions in monitoring, obtaining reports, increasing facilities and appointing receivers were within reasonable commercial practice and not oppressive under the Act.
29 Mar 2012

WESTPAC NEW ZEALAND LIMITED V CHAHIL COA CA614/2011

Citation

COA CA614/2011
Court

Court of Appeal

Clause 34 is unambiguous and applies only to capacity in which the signatory signed as trustee; it does not operate to limit or extinguish the separate and unlimited personal liability incurred where the same person also signed the guarantee in a personal capacity; consequently the respondent had no arguable defence and summary judgment was appropriate.
4 Oct 2011

AOTEAROA KIWIFRUIT EXPORT LIMITED V ANZ NATIONAL BANK LTD HC TAU CIV 2011-470-000697

Citation

openlaw-adea5767_dd23_4f1b_b426_3fa1f30c6320.pdf
Court

High Court

The Court held ANZ was not on notice of any defect in Ms Norman's authority under s 18, the delayed written consent amounted at most to a defect and s 158 validates her acts as director for the purposes of binding AKE to the guarantee, therefore there was no substantial dispute to set aside the statutory demand; AKE was insolvent and immediate liquidation was ordered with a liquidator appointed.
2 Jul 2010

ANZ NATIONAL BANK LIMITED V KOHIMARAMARA TARAWERA LIMITED & ANOR HC AK CIV 2009-404-003290

Citation

openlaw-8707ce66_2295_41dc_9b28_351b2ac2ac60.pdf
Court

High Court

The defendant did not adduce sufficient credible evidence of undue influence or facts that would have put ANZ on inquiry; the transaction appeared commercial (sole director/shareholder guaranteeing company debt) and ANZ was entitled to rely on the solicitor's certificate; accordingly there was no arguable defence and summary judgment was entered for ANZ.
2 Sept 2009

ANZ NATIONAL BANK LIMITED V SMITH AND ANOR HC AK CIV-2008-404-007866

Citation

openlaw-0f02e920_8deb_406a_9ab1_a243e250e8c3.pdf
Court

High Court

On these facts the bank had no actual knowledge of undue influence, Mr Smith was not the bank's agent to procure Stowers' signature, the bank reasonably relied on the solicitor's certificate and was not put on constructive notice; therefore Stowers had no reasonably arguable defence and summary judgment was properly granted.
16 Jul 2008

SOUTHLAND BUILDING SOCIETY V MILLER HC CHCH CIV 2007 409 367

Citation

openlaw-495f3abf_d767_448b_bcf8_f9b08b605453.pdf
Court

High Court

The registered mortgage, by its terms and by virtue of registration, secures all advances; Mrs Miller did not prove oppression under s120 CCCF Act in manner or inducement terms and, even if the threshold were met, the Court would not exercise its discretion under s127 to reopen or limit the mortgage given inability to quantify misuse, both parties' innocent status regarding the fraud and the matrimonial agreement risk of double recovery; consequently the declaration was granted and the counterclaim dismissed.
5 Feb 2007

RUTHERFORD V BANK OF NEW ZEALAND HC WN CIV-2006-485-1345

Citation

openlaw-df5b6255_660e_4063_9ff1_5fd291122e57.pdf
Court

High Court

Summary judgment was dismissed because the plaintiff raised an arguable presumption of undue influence that could be imputed to the bank; the bank was arguably put on inquiry given it handled related facilities and used separate solicitors, and therefore could not safely rely on the solicitor's certificate; factual disputes require trial.