New Zealand Case Law: Decisions & Judgments | LexChat

New Zealand Case Law

Mortgagee's duty of care

  • 22 Nov 2011

    WESTPAC NEW ZEALAND LIMITED V WILTSHIRE HC HAM CIV 2010-419-1675

    Citation
    openlaw-afff614c_2e9c_4bc3_b910_4f00550dace2.pdf
    Court
    High Court

    Defendant admitted liability under the guarantee and, on the evidence, the bank took commercially reasonable steps in respect of the Karapiro farm and Taotaoroa home sales and there was no duress or actionable mismanagement by receivers; the proposed amendment alleging an oral promise to advance further funds was refused as inconsistent with contemporaneous loan documents and lacking particularisation; only the Panorama beach sale raises a real issue of inadequate marketing/assistance to purchasers and may require trial, so summary judgment is appropriate in part subject to an allowance (up t…

    • Mortgagee's duty of care
    • Power of sale
    • Guarantee liability
    • Summary judgment
    • Duress
    • Valuation

  • 17 Aug 2010

    ANZ NATIONAL BANK LIMITED V XIANG LI HUO HC AK CIV 2010-404-001435

    Citation
    openlaw-0bf90953_6f92_48e6_80a6_c6508283cb4b.pdf
    Court
    High Court

    ANZ discharged its statutory duty: it obtained an independent valuation identifying the storm water issue, instructed a reputable agent who recommended and conducted an appropriate tender campaign, the sole tender received was within the valuer's forced-sale range, and the defendant therefore has no arguable defence; summary judgment for plaintiff was appropriate.

    • Mortgagee's duty of care
    • Reasonable care to obtain best price
    • Summary judgment
    • Valuation dispute
    • Marketing and method of sale
    • Tender and auction process

  • 17 Mar 2010

    SOUTHLAND BUILDING SOCIETY V FAWCETT HC HAM CIV 2009-419-000720

    Citation
    openlaw-53159458_7f42_4d70_8c0b_e1c506db00d8.pdf
    Court
    High Court

    No real defence existed because the plaintiff demonstrated it took reasonable commercial steps to market the property and obtain the best price reasonably obtainable at the time of sale; there was no evidence that potential purchasers existed who would have paid more, so there was no breach of s 176 and summary judgment for the principal was appropriate.

    • Mortgagee's duty of care
    • Power of sale
    • Property law act 2007 s 176
    • Summary judgment standards
    • Marketing and valuation in mortgagee sales

  • 11 Aug 2009

    SOUTHERN CROSS BUILDING SOCIETY V VULETIC HC AK CIV 2008-404-008684

    Citation
    openlaw-7cb17345_d04b_4ca9_b637_c4ad96f0896e.pdf
    Court
    High Court

    Southern Cross met its s176 duty because it engaged reputable agents who conducted active, open, property-specific marketing (tender and auction processes), accepted that market conditions had changed since earlier valuations or offers, and properly applied insurance proceeds under the Act; those facts establish no bona fide defence and justify summary judgment for the outstanding loan shortfalls.

    • Mortgagee's duty of care
    • Section 176 property law act 2007
    • Summary judgment
    • Mortgagee sale marketing obligations
    • Valuation evidence
    • Agent conduct