New Zealand Case Law: Decisions & Judgments

Topic

Mortgage security

Legal area

Court

18 Jul 2023

INTHAYUNG v HEIMSATH ALEXANDER TRUSTEE LTD [2023] NZHC 1867

Citation

[2023] NZHC 1867
Court

High Court

Applicant was the successful party and entitled to costs. Heimsath Alexander Trustee's insistence on conditions placed the dispute on the 'hostile' side of trust litigation so its costs (and any costs awarded against it) should not be indemnified from the Trust. The claimed costs were reduced for an excessive allocation of days under scale 2B (item 37) and the sealing disbursement of $50 was approved, resulting in a costs award of $12,936.50 to the applicant.
27 May 2022

WESTPAC NEW ZEALAND LTD v NEW DAWN HOLDINGS LTD [2022] NZHC 1118

Citation

[2022] NZHC 1118
Court

High Court

Summary judgment against NDHL and C K Y Chu refused because there is a real, arguable triable issue about the legal status of the loan funds while held in the solicitor's trust account and the scope of the solicitor's duties and agency during the interim period; summary judgment against the solicitor J S T Nguy on liability and on quantum was appropriate because he consented to liability, the quantum is certain, and allegations that Westpac contributed to its loss were not supported and legally unsustainable.
28 May 2021

SIDDIQUI v SIDDIQUI [2021] NZHC 1234

Citation

(2021) 22 NZCPR 342
Court

High Court

On the facts the defendants, while registered owners, held 126A Gloucester Road on institutional constructive trust for the plaintiffs because of the defendants' conduct, the mutual understanding at purchase, and the plaintiffs' longstanding contributions; defendants' claims of tenancy/licence and Land Transfer Act fraud failed; Court ordered defendants to transfer title to plaintiffs subject to payment of outstanding mortgage and quantified net adjustments totalling NZD 92,852 and further mortgage payments since 30 April 2021; alternative sale procedure and costs directions provided.
28 Nov 2019

FM CUSTODIANS LIMITED v R [2019] NZCA 598

Citation

[2019] NZCA 598
Court

Court of Appeal

The Court of Appeal granted an extension of time and granted leave to appeal because the High Court's decision raised matters of general or public importance—specifically whether the properties qualified as instruments of crime under the Criminal Proceeds (Recovery) Act 2009 and whether FM Custodians possessed a qualifying interest under s 77(1). The Court excluded the jurisdictional challenge to District Court authority from the scope of the appeal because the proceeding arose from the criminal jurisdiction, not a civil District Court proceeding.
11 Oct 2019

AVON PARNELL LTD v CHEVIN [2019] NZHC 2582

Citation

[2019] NZHC 2582
Court

High Court

Leave to file the statement of defence was granted on conditions because the delay was not lengthy, the defendant had participated in the proceedings and earlier affidavits gave notice of his case, the defence disclosed an arguable basis such that refusal would risk miscarriage of justice, and the plaintiffs were not shown to suffer irreparable prejudice; accordingly formal proof was dismissed and conditional orders (including costs and timetable) were imposed.
2 May 2019

YANG v DH and PM LTD [2019] NZHC 953

Citation

[2019] NZHC 953
Court

High Court

The plaintiffs failed to adduce sufficiently precise evidence demonstrating a real prospect of success at trial and did not establish that the balance of convenience or overall justice favored the grant of an interlocutory mandatory order transferring title; transfer would risk defeating bona fide security interests (including alleged Ropata Avenue advances) and the plaintiffs' undertaking as to damages lacked adequate evidential support, so the mandatory injunction was declined.
9 Nov 2018

THE FISHBOWL TRUSTEE LTD as trustee of THE FISHBOWL TRUST v DOWNTOWN HOUSE (No 2) LTD [2018] NZHC 2892

Citation

[2018] NZHC 2892
Court

High Court

The guarantee limited the Guarantor's monetary liability to $500,000 and defined Guaranteed Money as the sums the Guarantor was liable to pay under the deed; Fishbowl paid that capped sum and clause 16.1 therefore required Downtown to release Fishbowl and the caveat, so Downtown could not retain the caveat after receipt of all Guaranteed Money.
13 Dec 2017

ASB BANK LTD v SGARGETTA [2017] NZHC 3097

Citation

[2017] NZHC 3097
Court

High Court

ASB proved the indebtedness under the unlimited guarantee and the defendant had no real defence on the facts and law presented; counterclaims are not a bar to summary judgment and were not pleaded or evidenced so as to justify a stay; alleged Fair Trading Act misrepresentations and unconscionability lacked evidential foundation; acts of receivers are not attributable to ASB; judgment entered for ASB for $598,340.15 and remaining issues on interest and indemnity costs reserved for memorandum.
20 Sept 2017

MAGPIE PROPERTIES LTD v CROUCH [2017] NZHC 2262

Citation

[2017] NZHC 2262
Court

High Court

The statutory presumption in High Court Rule 15.23 applies when a plaintiff discontinues; there was no good reason to defer costs to the Disputes Tribunal; the plaintiff had made a reasonable Calderbank offer of $2,000 which the defendant unreasonably refused, and justice required a modest reduction from full 2B costs, resulting in an award of reduced costs of $2,000 against the plaintiff under r 14.7(g).
22 Jun 2017

TERRY SCHWASS COMPANY LTD AND JILL SCHWASS COMPANY LTD v DONNA LEE MARSH AND ANDREW TERENCE SCHWASS [2017] NZHC 1382

Citation

[2017] NZHC 1382
Court

High Court

The plaintiffs proved on the balance of probabilities that the $910,000 advance was intended as a loan: contemporaneous solicitor correspondence, draft loan and guarantee documents, a registered caveat described as an 'agreement to mortgage', accounting entries recording the advance as a loan, admissions by Andrew and accountant memoranda collectively demonstrate plaintiffs' intention; the oral agreement to mortgage is enforceable by s26 PLA via the doctrine of part performance because the funds were advanced to complete the purchase and acts and documents point to an agreement to mortgage; n…