ANZ Bank New Zealand Limited v Mawhinney

[2013] NZHC 1050

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-002356 [2013] NZHC 1050

UNDER  Section 143 of the Land Transfer Act 1952

IN THE MATTER OF     Caveat 9365757.1

BETWEEN  ANZ BANK NEW ZEALAND LIMITED Applicant

ANDPETER WILLIAM MAWHINNEY Respondent

Hearing:         9 May 2013

Appearances: L A O'Gorman/A L Williams for the Applicant

P W Mawhinney in person, the Respondent

Judgment:      9 May 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

09.05.13 at 4:30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:
A Williams/L O’Gorman, Buddle Findlay, Auckland - [email protected]/

[email protected]

Copy to: Mr Mawhinney – [email protected]

ANZ BANK NEW ZEALAND LIMITED V PETER WILLIAM MAWHINNEY HC AK CIV 2013-404-002356 [9 May 2013]

[1]      The applicant (ANZ Bank) applies to remove Mr Mawhinney’s caveat over a property belonging to Mr Barry Hart.  The ANZ Bank is the registered mortgagee of the property.  Its mortgage was registered on 17 October 2008.

[2]      The property in question is subject to a mortgagee sale process.   On 27

November 2012 in exercise of its power of sale as mortgagee, ANZ Bank entered into a sale and purchase agreement for the property.

[3]      On 6 May 2013, as part of the mortgagee sale process, ANZ Bank’s solicitors obtained a guaranteed search copy of the certificate of title of the property.   That showed that Mr Mawhinney lodged a caveat against the property on 11 April 2013. The caveat claims an interest pursuant to an alleged agreement to mortgage dated 10

February 2004 between Mr Mawhinney as mortgagee and Mr Hart as mortgagor.

[4]      On  7  May  2013  ANZ  Bank  filed  this  application  for  removal  of  Mr Mawhinney’s caveat on a Without Notice basis.  In support there has been filed an affidavit by the senior manager of the Bank.  Copies of the application, affidavit in support, and counsels’ submissions were, on 7 May 2013 at 3:18pm, emailed to Mr Mawhinney.

[5]      When the file was referred for my consideration I determined it should be called at 3:00pm today.  I directed ANZ Bank’s solicitors inform Mr Mawhinney of that arrangement.

[6]      Mr Mawhinney is a bankrupt.  He having been adjudicated bankrupt on 22

July 2010.

[7]      When the matter was called before me today Mr Mawhinney appeared and provided the Court with an outline of his submissions in opposition. Those stated:

(a)       Mr Mawhinney is a trustee of the Waitakere Forest Land Trust and he registered a caveat in that capacity.

(b)The caveatable interest is an agreement to mortgage under a joint venture agreement to subdivide certain land including the property in question, by which Mr Hart and the Trust were to supply land upon which the Trust was to undertake a subdivision.   The agreement to mortgage was to secure the repayment to the Trust of subdivision costs and a share in the proceeds of sale from the subdivision.

(c)       ANZ Bank’s is invalid, because:

(i)       It is not signed;

(ii)There is no contract in writing for the disposition of the land by  way  of  mortgage,  and  it  is  therefore  not  enforceable pursuant to s 24 Property Law Act 2007;

(iii)It does not contain the information required by s 101 Land Transfer Act 1952 including the nature of the debt secured by the mortgage;

(iv)It was not charged to secure any loan agreement or loan or guarantee, by the text of the paper authority and instructions given by both the applicant and Mr Hart to the solicitor who registered the mortgage.

(v)      Since it is registered it is indefeasible, but it secures nothing.

(vi)     Because the applicant’s mortgage is valueless, the balance of

convenience lies with the respondent.

[8]      Upon hearing Mr Mawhinney and counsel for the ANZ Bank, I made orders: (a)      There is an order lapsing caveat 9365757.1 with immediate effect.

(b)It is in order for the Court to seal the order in terms of the draft submitted for that purpose.

(c)       Costs be reserved.

Considerations

[9]      The High Court has already determined the Bank is entitled to possession of the property and to exercise its mortgagee power of sale. [1]

[1] Hart & Ors v ANZ Bank New Zealand Limited [2013] NZCA 94.

[10]     The Bank had no knowledge of Mr Mawhinney’s claim of an alleged interest nor has such alleged interest been the subject of reference in the extensive litigation concerning the Bank’s mortgagee sale of this property.  The Bank has not consented to any such interest being granted.

[11]     The Bank’s registered mortgage has priority over an undisclosed registered agreement to mortgage, as Mr Mawhinney claims he has.  Also the interests of the purchaser under the Bank’s mortgagee sale prevail over any interests of Mr Mawhinney.   Mr Mawhinney appeared to concede that the ANZ Bank’s registered mortgage prevailed over his claim of an unregistered interest.  Instead he relied upon claims that the ANZ Bank mortgage was invalid.

[12]     The Bank brings its present application under s 143 of the Land Transfer Act for the immediate removal of the caveat.  The Court is empowered to make such an order on a without notice basis if it considers it appropriate.  In this case the Court chose to adopt the Pickwick procedure.

[13]     Claims of an invalid mortgage are baseless.  In the process of the registering of Mr Hart’s mortgage to the Bank, the Bank was vested with the authority contained by the mortgage terms.

[14]     In response to submissions that the High Court, Court of Appeal and Supreme Court have previously endorsed the ANZ Bank’s rights to act as it has pursuant to the mortgage Mr Mawhinney responds that he ought to be given an opportunity to pursue the point of invalidity notwithstanding – because he says it has not been

argued previously.   But Mr Mawhinney is not the mortgagor of the ANZ Bank’s

mortgage.   Clearly it is not appropriate to permit Mr Mawhinney to pursue legal points  in  effect  on  behalf  of  Mr  Hart  when  Mr Hart  has  already had  that  full opportunity.

[15]     Mr Mawhinney told the Court that he had been in discussions with Mr Hart since September 2012.  Yet, he has left it until very recently i.e. when the mortgagee sale settlement was imminent to advance these matters not only for himself but it appears also on behalf of Mr Hart.

[16]     Considerations of balance of convenience do not favour Mr Mawhinney.

[17]     When I informed Mr Mawhinney of the orders the Court would make he requested the Court to grant a stay.  I advised Mr Mawhinney that that request would

be refused.

Associate Judge Christiansen