New Zealand Case Law: Decisions & Judgments | LexChat

New Zealand Case Law

Mortgagee power of sale

  • 7 Dec 2023

    Re Barry Raymond Hall [2023] NZHC 3566

    Citation
    [2023] NZHC 3566
    Court
    High Court

    The Court was satisfied the statutory prerequisites under s200 were met (mortgagor default and mortgagee entitlement), the property had been reasonably marketed and tested at auction, independent valuation evidence produced a forced‑sale range, and the proposed purchase price of $350,058.09 exceeded that forced‑sale range and improved on the auction outcome; accordingly the price represented the best price reasonably obtainable and the Court granted approval under s200(3)(d) for the mortgagee to purchase the property.

    • Mortgagee power of sale
    • Court approval for mortgagee purchase under s200(3)(d)
    • Forced sale valuation
    • Service and substituted service

  • 3 Nov 2023

    SENIOR TRUST CAPITAL LIMITED v HOLMES [2023] NZHC 3108

    Citation
    [2023] NZHC 3108
    Court
    High Court

    Because the mortgagee sale process was not challenged and objectively tested the market producing an $18,000,000 sale after proper marketing, the Court found no breach of s176 or of an equitable duty of good faith; the earlier $22,000,000 contract was not shown to be alive at sale and key contractual differences (exclusion of two units, warranties and other terms) explained the price gap; the guarantee/loan contained a conclusive certificate clause and no manifest error appeared on the face of the certificate, and defendants failed to identify a reasonably arguable defence on quantum; therefo…

    • Mortgagee power of sale
    • Duty to obtain best price (s176 property law act 2007)
    • Good faith in enforcement
    • Summary judgment principles
    • Conclusive certificate of debt
    • Quantum of debt

  • 16 Aug 2023

    HND HOLDING LTD v LAU [2023] NZHC 2211

    Citation
    [2023] NZHC 2211
    Court
    High Court

    The claimed equitable interests were not proven to be sufficient or consented to and therefore did not prevent HND from exercising its power of sale under the mortgage; accordingly s 142 LTA relief was granted and the caveat removed.

    • Caveat removal
    • Mortgagee power of sale
    • Constructive trust
    • Agreement for sale and purchase
    • Pre‑paid lease
    • Costs

  • 15 Feb 2022

    LI & ORS v GREEN LAND & ORS [2022] NZHC 187

    Citation
    [2022] NZHC 187
    Court
    High Court

    Because the plaintiffs made no claim to any legal or beneficial interest in the specified unclaimed lots there was no serious question to be tried in respect of those lots; speculative risk of future illegality by the third defendant was insufficient to sustain the injunction over those lots; accordingly the Court varied the interim injunction to permit registration of the specified mortgage transfer and to exclude the unclaimed lots from the injunction, while directing a separate, evidence-based hearing on security for the plaintiffs' undertaking as to damages.

    • Interim injunction
    • Undertaking as to damages
    • Security for costs/security for undertaking
    • Mortgagee power of sale
    • Registration of instruments
    • Admission of documents under s130 evidence act

  • 12 Jan 2022

    KEAST v CROWN WORLDWIDE (NZ) LIMITED [2022] NZHC 12

    Citation
    [2022] NZHC 12
    Court
    High Court

    Because Crown acted as FM's lawfully instructed agent (sub-bailee) in uplifting and storing the goods, there was no legal basis for the claims against Crown and Crown caused no actionable loss; although plaintiffs reasonably joined Crown, the interests of justice did not require FM to pay the plaintiffs' costs to Crown, so usual costs principles apply and plaintiffs must pay Crown's costs; costs against FM are reserved for determination at trial.

    • Summary judgment
    • Costs
    • Mortgagee power of sale
    • Bailee/sub-bailee
    • Conversion
    • Trespass

  • 30 Sept 2021

    BANK OF NEW ZEALAND LTD v FERNANDO [2021] NZHC 2595

    Citation
    [2021] NZHC 2595
    Court
    High Court

    Defendant had no arguable defence: the Bank took reasonable care in marketing and selling the mortgaged units (sales aligned with forced sale valuations, auction and marketing were proper, limited access and negative buyer feedback explained prices), the conduct did not amount to oppression under the CCCF Act, and therefore summary judgment was entered for the Bank for the residual guarantee shortfalls with interest and costs reserved.

    • Mortgagee power of sale
    • Duty to obtain best price (s176 property law act 2007)
    • Oppressive conduct and reopening (s120 cccf act 2003)
    • Personal guarantee liability
    • Summary judgment test and procedure
    • Valuation evidence and forced sale valuation

  • 2 Feb 2021

    BANK OF NEW ZEALAND v PADAMATI [2021] NZHC 45

    Citation
    [2021] NZHC 45
    Court
    High Court

    The s 342 factors favour ordering sale under s 339: the plaintiff is a first-ranking mortgagee with a substantial unpaid debt, the defendants and Official Assignee did not oppose or act to protect the property, the property is not a family home, and the plaintiff would suffer hardship if prevented from realising its security; accordingly the Court ordered sale under the plaintiff's control with specified priority of distribution and a seven-day stay to enable the second defendant to make an offer.

    • Order for sale under s 339 pla
    • Severance of joint tenancy by bankruptcy
    • Mortgagee power of sale
    • Court factors under s 342
    • Stay to permit purchase of mortgagee's interest
    • Costs (2b)

  • 17 Jul 2020

    DENIZE TRUSTEE COMPANY LTD v WAIMAURI LTD [2020] NZHC 1718

    Citation
    (2020) 21 NZCPR 247
    Court
    High Court

    S 387(1)(c) was complied with because leaving the notices at the company's registered address by handing them to an occupant connected with the premises constituted leaving them at the registered office; the court declined to exercise its residual discretion to set aside valid service because any lack of efficacy resulted from Denize's own failure to update its registered/residential address and because Denize had actual notice by email months earlier; therefore the application for interim relief was dismissed.

    • Mortgagee power of sale
    • Service of process
    • Section 119 property law act 2007
    • Section 387 companies act 1993
    • Effective service
    • Interim relief

  • 21 Feb 2020

    IKON BUILDING CO-OPERATION LTD v DUMASIA [2020] NZHC 223

    Citation
    [2020] NZHC 223
    Court
    High Court

    Defendants' claimed defences (variation of the loan, breach, estoppel and invalid default notice) are not arguable on the evidence: the loan/guarantee required written amendments and no such amendment was proved; contemporaneous emails and conduct were consistent with the original agreement; defendants cannot rely to defeat summary judgment because clear contractual 'no set-off'/'payments without deduction' clauses preclude relying on counterclaims or set-off; accordingly there is no real question to be tried and summary judgment is entered for the plaintiff.

    • Guarantee
    • Mortgagee power of sale
    • Summary judgment
    • Estoppel
    • Variation of contract
    • Set-off/counterclaim

  • 17 Jun 2019

    EPSOM WOODS LIMITED v WAITAKERE FARMS LIMITED [2019] NZHC 1374

    Citation
    [2019] NZHC 1374
    Court
    High Court

    Waitakere Farms Ltd obtained registered title under s105 Land Transfer Act 1952 when acquired from a mortgagee exercising a power of sale; Moore J's removal of the caveat was a final determination that the mortgagee (Nags Head) did not know of or consent to the 2009 agreement to lease, so the unregistered lease and the residential tenancy did not bind the purchaser absent actual fraud or mortgagee consent; Epsom Woods Ltd (as privy to the caveator) cannot assert greater rights than the caveator and has no arguable cause of action, so summary judgment for the defendant was granted.

    • Indefeasibility
    • Mortgagee power of sale
    • Caveat
    • Constructive trust
    • Estoppel
    • Summary judgment