ANZ Bank of New Zealand Limited v Coker
[2015] NZHC 2844
•16 November 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2015-419-000046 [2015] NZHC 2844
BETWEEN ANZ BANK NEW ZEALAND LIMITED
Plaintiff
AND
MICHELE COKER Defendant
Hearing: 22 October 2015 Appearances:
Duncan MacKenzie for the Plaintiff
Kenrick Patterson for the DefendantJudgment:
16 November 2015
JUDGMENT OF MOORE J
This judgment was delivered by me on 16 November 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
ANZ BANK NEW ZEALAND LIMITED v COKER [2015] NZHC 2844 [16 November 2015]
Introduction
[1] The ANZ Bank (“the Bank”) sues Ms Coker as a guarantor. It applies for
summary judgment on the basis there is no arguable defence to its claim.
[2] Ms Coker does not dispute her indebtedness to the Bank but she claims the Bank’s conduct has been such as to create an equitable estoppel which bars the Bank from recovering the funds. Secondly, she alleges that the Bank failed to obtain the best price at the mortgagee sale and thus it cannot recover all of the shortfall between the amount owed and the sale funds realised.
Background
[3] Ms Coker, through various entities, has had a commercial relationship with the Bank since early 2006 when she guaranteed a loan advanced by the Bank to Brandtford Trustees Limited (“BTL”). BTL is the corporate trustee of the Brandtford Trust (“the Trust”). Ms Coker is the sole director and sole shareholder of BTL. In April 2006 BTL took out a FlexiPlus facility. The credit limit was
$450,000. The following month BTL took out an additional term loan facility for
$450,000. The term loan was secured by way of a registered mortgage over a property on River Road, Hamilton. Ms Coker’s guarantee was a standard personal guarantee under which she guaranteed BTL’s obligations to the Bank.
[4] Another entity Ms Coker was involved with was Sapphire Trustees Limited (“Sapphire”). Sapphire was the corporate trustee of the Michele Coker Foundation (“the Foundation). Again, Ms Coker was the sole director of Sapphire. Although not directly connected with the present proceedings the Bank’s relationship and its dealings with Sapphire is claimed by Ms Coker to have relevance. The Bank took security over its lending to the Foundation by way of a registered first mortgage over two Hamilton properties situated in Killarney Road and Horne Street in Hamilton. Separate from the present proceedings, the Bank commenced enforcement action following defaults by the Foundation on its borrowings. The Bank exercised its rights as mortgagee and sold Killarney Road at a mortgagee sale. The Bank accepted an offer from Ms Coker of $410,000 on a refinancing of Horne Street and withdrew the property from the proposed mortgagee auction.
[5] Following the mortgagee sale of Killarney Road and the agreed sale of Horne Street there was a surplus of more than $45,000. These funds were returned to the Foundation.
[6] Between 2008 and 2010 BTL began to default on its repayment obligations. On 3 March 2010 the continuing defaults lead the Bank to issue a notice of demand to both BTL and Ms Coker in her personal capacity as guarantor. The Bank required the arrears to be remedied by 18 March 2010. The arrears were not paid. Instead, Ms Coker complained to the Banking Ombudsman on 5 June 2010. Her complaint related to the rate of interest and her inability to access her account online.
[7] The arrears position came to a head in late 2010 and early 2011 when the advances were restructured. The purpose of restructuring the term loan facility related to repayment defaults by BLT. The limit on the FlexiPlus facility was increased to $481,000 and the term loan was restructured to become a six month term loan from February 2011 for $495,765.22. It is this lending which is the subject of the Bank’s present claim. The six month term loan was not repaid in full when it fell due in August 2011. At that point the FlexiPlus facility was also in arrears. As a consequence, on 23 April 2012, the Bank again made demand on both BTL and Ms Coker. The demand was for the amounts owing under the term loan which had fallen due. At that time, the Bank also issued default notices under the Property Law Act 2007 (“the PLA”).
[8] The PLA notices expired without being remedied. Ms Coker’s response was to make another complaint to the Banking Ombudsman on 25 July 2012, albeit in relation to Sapphire and not BTL. The essence of her complaint was that in 2008, as a result of various representations made by the Bank; Sapphire and Ms Coker commenced developing the Killarney Road property in the belief that the Bank would finance the property development project. Ms Coker’s claim is that the Bank set strict criteria in relation to the development of this property including placing transportable houses on the sites, connecting the houses, obtaining codes of compliance and obtaining a new valuation. The Bank then declined to refinance the venture, citing the property market crash. Although this complaint related to the activities of Sapphire Mr Patterson submits the Bank’s conduct was the catalyst
which lead to the “unravelling” of her plans and the start of her financial difficulties with the Bank including those involving BTL.
[9] The consequence of Ms Coker’s complaint was that the Banking Ombudsman directed that the matter should be considered by the Bank’s internal complaint processes. The Bank advised Ms Coker it was prepared to extend the time for the Trust to remedy the defaults in lending. Despite this indulgence the defaults were not remedied and in February 2013 the Bank advised Ms Coker that the Trust was still in arrears and she needed to advise what action was being taken to remedy the position. Despite repeated approaches over the course of much of 2013 the situation remained unchanged.
[10] In October 2013 the Bank wrote to Ms Coker advising that because BTL’s
term loan had expired unpaid in August 2011 and the PLA notices issued in May
2013 had expired unremedied the Bank would be proceeding with recovery action. The amount outstanding at that time was in excess of $500,000. The Bank made a demand that payment be received by 4 November 2013. No payment was made by that date and so on 5 November 2013 the Bank made a formal demand.
[11] This step appears to have provoked Ms Coker into making another complaint to the Bank on 7 November 2013. She claimed the Trust was not in fact in arrears. The Bank’s position was that irrespective of this claim the term loan had expired and the Trust was thus in default. Ms Coker did not accept that position and issued further complaints.
[12] Between November 2013 and January 2014 Ms Coker made three further complaints to both the Bank and the Banking Ombudsman. None of these complaints was upheld. Despite this, the Bank took the precautionary step of issuing a further set of default notices under the PLA. This set of notices expired unremedied on 7 July 2014. The Bank issued a call up notice two days later in relation to BTL and Ms Coker for the full amount owing under both facilities; totalling $1,018,744.99 between 10 September and 9 October 2014.
[13] The mortgaged property at River Road was marketed by the Bank for sale. The property ultimately sold at auction on 9 October 2014 for $680,000. Following the application of the proceeds of sale, which were insufficient to meet the shortfall of the funds owed, the Bank made demand on Ms Coker for $405,570.55. These proceedings were commenced in February 2015.
Defendant’s submissions
[14] Mr Patterson, for Ms Coker, first submits that the conduct of the Bank was such as to create an equitable estoppel which bars it from recovering the money from Ms Coker.
[15] On this issue Ms Coker filed an extensive and very detailed affidavit setting out what she alleged amounted to an ongoing pattern of delay, failure to report, the making of promises which were later reneged on and other incidents of alleged misconduct on the part of the Bank which were instrumental in causing BTL to default. In particular, Ms Coker alleged that the penalty interest was applied by the Bank without her knowledge and that for several years the Bank incorrectly charged insurance fees on the properties and was slow to correct the error when it was discovered. Ms Coker also claims that the Bank has delayed in seeking to enforce its rights under the guarantee.
[16] Mr Patterson thus submits that the Bank has caused or connived in Ms Coker’s default. He submits that through its conduct the Bank created or encouraged an expectation which reasonably lead Ms Coker to believe the Bank would not exercise its rights under the guarantee.
[17] Alternatively, Mr Patterson submits that the Bank failed to take reasonable care to obtain the best price for the River Road mortgagee sale. As such, he submits the Bank was in breach of its legal duty under s 176 of the PLA. He submits that if the property had been sold at its true value then the amounts owing to the Bank under the current claim would have been paid off if not in their entirety then at least substantially.
[18] He thus submits that this case presents genuinely triable cause of action and summary judgment should not be ordered.
Plaintiff ’s submissions
[19] Mr MacKenzie, for the Bank, submits that this is a simple case concerning an outstanding debt owed to the Bank by a defaulting borrower.
[20] Mr MacKenzie accepts there may have been misunderstandings, errors and miscommunications. However, he submits that the Bank at all times maintained the debt was owed and needed to be paid. At no point in its dealings with Ms Coker did it encourage a belief to the contrary. Mr MacKenzie submits that none of the evidence referred to in Ms Coker’s affidavit identifies any conduct attributable to the Bank which could possibly be interpreted as an expectation which might reasonably have lead Ms Coker to believe the Bank would not enforce its rights under the deed of guarantee. He thus submits there can be no estoppel and the debt is enforceable.
[21] In relation to the alternative claim that the Bank breached its legal duty under s 176 of the PLA, Mr MacKenzie submits that the Bank adopted a conventional and reasonable sale process. It engaged a reputable real estate agent, obtained a valuation from a registered valuer, advertised the property for four weeks and sold it at auction for a purchase price which was within the range set by the valuer. He thus submits that the price was a reasonable one and there has been no breach of s 176.
Principles applicable to summary judgment applications
[22] The relevant principles applicable to applications for summary judgment are well settled and can be summarised briefly. The Court of Appeal in Krukziener v Hanover Finance Limited1 described the principles in the following way:
“The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR
1at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is
no defence, the defendant will have to respond if the application is to be
defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not
1 Krukziener v Hanover Finance Limited [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].
normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331at 341 (PC). In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ
84 (CA).”
[23] Both parties accept that these principles apply and there is no reason to depart from their application in the present case.
[24] I turn now to consider the two defences advanced by Ms Coker.
Equitable estoppel and laches
The claim
[25] It is common ground that over a period of some years after the loans fell into arrears the Bank did not take enforcement action. During this period the loan was restructured, demands were made, PLA notices were issued, lapsed and reissued. The essence of Ms Coker’s defence is that this conduct by the Bank means it is unconscionable for the Bank to now rely on its legal rights to enforce payment under the personal guarantee.2
The law
[26] Mr Patterson submits that there is a preliminary issue which is relevant to the present case in respect of estoppel and the relationship between laches and equitable estoppel.
[27] Equitable estoppel and the equitable defence of laches share significant overlap in their application in that both equitable remedies give the Court a discretionary power to protect a party which has been disadvantaged by the lawful
actions of another. The test in both cases is one of unconscionability.3
2 Ball v Ford (1989) 167 CLR 316; No. 68 Limited v Eastern Services Limited [2006] 2 NZLR 43 (CA).
3 National Westminister Finance NZ Ltd v National Bank of NZ Ltd [1996] 1 NZLR 548 (CA).
[28] In the case of estoppel the Court may intervene only if four criteria are satisfied.4 These are:
(a) the counterparty has, by words or conduct, induced the party to hold a certain belief;
(b) the party has relied on this belief;
(c) the party has suffered a detriment as a result of its reliance; and
(d)it would be unconscionable for the counterparty to now act in way that contradicts that belief.
The evidence relied on
[29] Mr Patterson listed the Bank’s conduct which he submits induced Ms Coker to believe the Bank would not enforce its rights under the guarantee. These were numerous. They included the substance of Ms Coker’s complaint to the Banking Ombudsman in July 2012 relating to the Sapphire development in 2007 and 2008. While accepting this conduct related to a different business entity Mr Patterson submits it was this conduct which lead to what he describes as the “unravelling” of Ms Coker’s financial position including BTL’s defaults. Mr Patterson particularly refers to Ms Coker’s evidence that had she known the Bank was not going to “do the finance” she would never have started the project; she had been lead “along the garden path” by the Bank and its staff and changed her position significantly including being financially committed to the development on the basis of the Bank’s advice. Mr Patterson also relies on the Bank’s request for further statements of financial position, the lack of response by the Bank to the provision of financial documentation and the restructuring of the loans in February 2011.
[30] Additionally, Mr Patterson points to evidence which he submits created expectations by Ms Coker’s. These included the Bank’s failure to acknowledge a plan to pay off the arrears, the demand for information coupled with the failure to
take any action except a request for further information, the lack of any action from
4 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567.
the Bank for a period in excess of two years, Ms Coker’s promise to continue to pay the loans and the Bank’s subsequent service of PLA notices which expired unremedied and unenforced, the contradiction of the bank statements and the request for interest only payments in arrears and the lack of arrears at the time the November PLA notices were issued. Finally, Mr Patterson also argues that certain incomplete disclosures by the Bank make its actions unconscionable.
[31] In the course of oral submissions I asked Mr Patterson what particular conduct did he rely on as inducing Ms Coker to believe the Bank would not seek to enforce its rights under the guarantee. Mr Patterson said it was the history of the Bank’s conduct specifically not to enforce defaults under the loan, particularly by issuing PLA notices and letting them lapse. He said this lead Ms Coker to believe she would always have been able to negotiate with the Bank to avoid enforcement of the guarantee.
Analysis
[32] Viewed as an estoppel the defence falls at the first hurdle. Whether the features of evidence relied on by Mr Patterson are considered individually or collectively it is inconceivable that Ms Coker could have believed that the Bank, through its conduct, lead her to believe it would not enforce its rights under the guarantee. For example, the representations Ms Coker claims were made in relation to the Sapphire development involved entirely different loan arrangements from those of BTL or the Trust. Significantly, Ms Coker’s complaint in this aspect is that the Bank did not advance the funds. It is not a complaint that the Bank made a loan which it indicated it would not require to be repaid.
[33] Nothing in any of the representations, acts, omissions or declarations attributed to the Bank suggest or are otherwise capable of creating an inference that the Bank would not seek to enforce its rights in the event of a default.
[34] In my view it is not insignificant that each of Ms Coker’s complaints arises out of defaults by BTL on the agreed terms of lending. For example, a loan holiday was not given because BTL was in default. Interest charges were increased in accordance with the terms of the loan agreement because of the default. The
requirement for statements of financial position to be provided in support of BTL’s request for more time to repay the debt came about because BTL was in default of its obligation to repay the term loan. The question of insurance arose because the Bank was required to protect its security by ensuring the mortgaged property was insured because BTL had failed to do so.
[35] In short, none of what Ms Coker alleged in her affidavit amounts to unconscionable conduct on the part of the Bank. Nor is there any evidence at all to suggest that the guarantee was legally discharged.
[36] I agree with Mr MacKenzie that, in fact, the very opposite is true. In the relevant period BTL was continually in default of its repayment obligations. The Bank provided numerous extensions for it to refinance its borrowing or reduce its debt. In my view it extended considerable leniency and tolerance in the face of the chronic defaults on the part of BTL. It is also noteworthy that almost every time the Bank pressed for payment or commenced enforcement action Ms Coker responded by lodging a complaint either with the Bank directly or with the Banking Ombudsman.
[37] This necessarily introduced further delays and frustrated the Bank’s ability to
exercise its rights under the guarantee.
[38] It is conduct which also answers Ms Coker’s complaint that the Bank repeatedly changed managers. In response, while the Bank accepted that changes of this sort are unfortunate, it observed it is not an uncommon consequence when dealing with a customer who is chronically in arrears. As the state of the Trust’s borrowings deteriorated, Ms Coker’s dealings with the Bank were transferred to different units within the Bank’s operation, ultimately ending up in the recoveries division.
[39] In the circumstances it cannot be said that it would unconscionable for the
Bank to exercise its rights under the guarantee.
[40] I am satisfied the Bank has discharged its onus in satisfying me that there is no arguable defence on the evidence in relation to this ground of opposition.
[41] I come to the same conclusion in relation to the equitable defence of laches. I am not satisfied that there has been a delay such that it is now unconscionable for the Bank to rely on its legal rights. I am satisfied that the delays, such as they were, were either to provide Ms Coker and the Trust with the opportunity to refinance, restructure or repay the loan without the need for the Bank to enforce the guarantee. Other delays, such as they were, were caused by Ms Coker’s repeated complaints to the Bank or the Banking Ombudsman. It is my view it is relevant that a number of the complaints were made shortly after formal demands had been issued and, as a consequence, enforcement action was necessarily postponed requiring the Bank to suspend recovery action until the dispute had been determined.
[42] Finally, for the sake of completeness, I turn to deal with Mr Patterson’s submission that the Bank caused or connived in the default by Ms Coker. As I understood Mr Patterson’s submission this is a separate ground of opposition albeit an iteration of the same general ground discussed above.
[43] Mr Patterson relies on four aspects of the Bank’s conduct which he submits lead BTL to fail. These were:
(a) the history of changing bank managers; (b) the lack of access to online banking;
(c) the application of penalty interest rates; and
(d) insurance payments.
[44] I have already discussed each of these matters in my consideration of equitable estoppel. For the same reasons I dismissed the other grounds, I am satisfied that none of these factors taken individually or collectively supports the claim that the Bank caused BTL to default on its payments. As already discussed,
each of these events came about as a consequence of BTL’s default and in this sense it can be said BTL brought the consequences on its own head.
[45] It follows that I am satisfied that there is no real question to be tried and that the defendant has no defence in relation to this general ground.
Was there a breach of s 176 of the PLA?
[46] Mr Patterson submits that there is clear evidence the Bank failed to take reasonable care to obtain the best price at the mortgagee sale of the River Road property. He submits that had the property been sold at its true value then the amounts owing to the Bank under the current claim would have been paid off if not in their entirety then at least substantially. He submits the evidential background is such as to present a genuinely triable breach of the s 176 duty and as such summary judgment should not be ordered.
[47] Section 176 of the PLA provides as follows:
“176 Duty of mortgagee exercising power of sale
(1) A mortgagee who exercises a power to sell mortgaged property, including exercise of the power through the Registrar under section 187, or through a court under section
200, owes a duty of reasonable care to the following persons to obtain the best price reasonably obtainable as at the time
of sale:
(a) the current mortgagor: (b) any former mortgagor: (c) any covenantor:
(d) any mortgagee under a subsequent mortgage:
(e) any holder of any other subsequent encumbrance.
(2) A mortgagee who exercises a power to sell mortgaged property may not become the purchaser of the mortgaged property except in accordance with section 196 or an order of a court made under section 200.”
[48] The section does not prescribe a particular mode of sale but requires the mortgagee to take reasonable care. Mortgagees, therefore, are generally expected to
obtain professional advice,5 ensure the property is advertised appropriately6 and to obtain an independent valuation of the property as a reference point.7
[49] A mortgagee’s duty in exercising a power of sale as contained in s 176 of the PLA is well settled. In Long v ANZ National Bank Limited8 the Court of Appeal set out five specific principles relating to the exercise of the duty:
(a) The statutory obligation is not to obtain the best price reasonably obtainable, but to take reasonable care to obtain the best price reasonably obtainable. That best price might not necessarily be obtained.
(b)When the property is sold in a forced sale, such as a mortgagee sale, it is likely to sell at a substantial discount from the market value that the property would achieve in a sale undertaken by an owner not under financial pressure to sell.
(c) Valuations lose much of their significance if reasonable care is taken, there has been a properly advertised and conducted auction, and the property has been sold at auction or by negotiation after the auction.
(d) What constitutes reasonable care always turn on the facts of the case.
The steps taken by the mortgagee in fulfilling the statutory duty have to be looked at in the round.
(e) In considering the reasonableness of the care taken, the Court should be slow to second guess the actions of a mortgagee acting on
apparently sound professional advice.
5 Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349 (PC).
6 National Westminster Finance New Zealand Ltd v United Finance & Securities Ltd [1988] 1
NZLR 226 (CA).
7 Tse Kwong Lam above n 5.
8 Long v ANZ National Bank Limited [2012] NZCA 132 at [21].
[50] In Public Trust v Ottow9 Asher J set out a useful summary which assists in assessing whether a mortgagee has made reasonable efforts to obtain the best reasonably obtainable price and thus complied with its duty under s 176. These include the appointment of a reputable real estate agent to market the property, obtaining a valuation report from an experienced valuer, marketing and advertising the property for sale, a properly conducted auction, and a sale price that, given all the circumstances, can be reconciled with expert opinion as to value.
[51] Mr Patterson submits that the first relevant valuation was the 5 November
2012 rating valuation by Quotable Value (“QV”). This valuation valued the land at
$580,000 (the same value as the 2009 land valuation) with improvements valued at
$620,000 (which was $50,000 below the 2009 valuation).
[52] He submits that the next valuation of relevance was QV’s valuation of
17 September 2014 which valued the land at $600,000 (an increase of $20,000 from the previous valuation) but valued the improvements at $400,000 ($220,000 less than the previous valuation).
[53] Mr Patterson submits that this valuation was plainly wrong. He submits there was no evidence within the market to suggest a deterioration in the value of the improvements by $220,000 in two years. The consequence, he submits, is that by assessing a 20 per cent to 35 per cent discount to arrive at the $650,000 to $800,000 price range under mortgagee sale circumstances, the range arrived at was artifically low. He also notes that the percentage figures do not equate. The values, given a 35 per cent discount on $1,010,000 would be $656,500 and 20 per cent discount would be $808,000. If these figures were applied to a reasonable valuation of $1.2 million they would have resulted in a range between $780,000 to $960,000.
[54] Mr Patterson also refers to the real estate agent’s own market assessment set out in their sale proposal of 11 August 2014. In their market analysis Bayleys observed:
“Under normally selling conditions we would expect the property to
potentially reach between $1 million and $1,050,000 however under forced
9 Public Trust v Ottow (2010) 10 NZCPR 879 (HC) at [31].
conditions we would appraise it from $800,000 to $850,000. Hence the importance of a comprehensive marketing campaign to promote the property to both the passive and active buyer market. Marketing the property by way of auction allows prospective buyers to determine their own opinion on value while being in a competitive environment. This property appraisal is an opinion and does not purport to be a registered valuation.”
[55] Furthermore, Mr Patterson is critical that the Bayleys real estate agent had only two years experience and the marketing programme was flawed and peppered with misstatements and inaccuracies. He submits it is plausible that Bayleys were undermining the sale process with a view to obtaining a quick sale from which commission would be taken and that it is reasonably arguable that Bayleys’ conduct compromised the sale of the property.
[56] As such, Mr Patterson submits that this is a factual dispute which goes to credibility and can only be decided after a full hearing. He submits that the evidence discloses a genuinely triable breach of s 176 of the PLA and, as such, summary judgment should not be ordered.
Analysis
[57] In order to examine whether the Bank observed its duty to take reasonable care to obtain the best price reasonably obtainable at the time of sale it is necessary to examine the events which preceded the sale.
[58] I agree with Mr MacKenzie that the QV valuations must be considered in the context of their use. They are rating valuations and the valuation is something of a “desk top” analysis. The variation between the value of improvements assessed in
2012 and the value assessed in 2014 may easily be explained by the valuer examining the inside of the house in 2014. Whatever the position, only limited weight can be given to these QV valuations when the other factors discussed below are taken into account.
[59] Furthermore, the valuation assessment undertaken by Bayleys and referred to above needs to be examined in context. Bayleys was asked by the Bank to provide it with a confidential sale proposal for River Road. Bayleys’ proposal recommended sale by auction preceded by a marketing campaign of four weeks duration. The
reason sale by auction was considered the best option was because Bayleys believed it would allow prospective buyers to express their own opinion on value, while at the same time requiring them to bid in a competitive environment. Whilst it is correct that Bayleys appraised the value of River Road at between $800,000 and $850,000 under forced conditions their assessment was based on their knowledge of the market and they expressly made the reservation that in doing so it was not a valuation from a registered valuer.
[60] The Bank did not rely on Bayleys’ estimate of value. Instead, it engaged a registered valuer, QV. QV assessed the market value of the property (including chattels) at $1,010,000 (inclusive of GST) based on a selling period of three to six months. QV was also requested to make an assessment based on a forced sale scenario. It anticipated a discount of between 20 per cent to 30 per cent from current market value, exclusive of chattels. It considered that the property would sell within the range of $650,000 to $800,000 under forced sale conditions.
[61] Bayleys’ sale and marketing proposal was accepted by the Bank. It then embarked on a four week marketing programme. Weekly reports from that campaign revealed potential buyers placed values ranging from $500,000 to
$850,000.
[62] In tandem with Bayleys’ marketing programme, Ms Cocker also marketed the property with a different real estate agent.
[63] On 9 September 2014 an offer of $600,000 was received. This offer was rejected by the Bank because it fell outside the valuation range given by QV.
[64] The property went to auction on 9 October 2014 and was sold for $680,000.
[65] Adopting the principles in Wong v ANZ National Bank Limited and Public Trust v Ottow the Bank has satisfied me that Ms Coker has no defence. Given the forced sale circumstances it was inevitable that the property would sell at a substantial discount from market value. The valuation from a registered valuer was obtained. There was a prolonged and active pre-auction marketing campaign. An
offer which fell outside the recommended price range was rejected by the Bank. The property was sold in a competitive and open market process. The price accepted fell within the range recommended by the registered valuer.
[66] In these circumstances I conclude the Bank took reasonable care to obtain the best possible price. There is no room to entertain a serious factual dispute nor are there any issues which go to credibility which would require a full hearing.
Conclusion
[67] The Bank has satisfied me that Ms Coker has no defence to its claim. There are no material evidential conflicts and the resolution of the case is not in any substantial way reliant on the assessment of the credibility of the deponents. Ms Coker’s claim that the Bank’s conduct in not enforcing the various defaults under the loan lead her to believe the Bank would not enforce the guarantee is simply incredible, particularly having regard to Ms Coker’s knowledge and experience as a property developer from at least 2006.
[68] Similarly, the Bank has satisfied me that it took reasonable care to obtain the best price obtainable at the time of sale and thus discharged it duty to the mortgagor. I am satisfied that Ms Coker has no defence to the claim and there is no real question to be tried.
Decision
[69] Judgment is ordered in favour of the Bank on the following basis: (a) judgment in the sum of $425,470.72;
(b)interest calculated on the amount owing under the FlexiPlus account at the rate of 6.85 per cent per annum up to the limit of $481,000 and at 28.95 per cent per annum for the balance above that from
30 January 2015 until the date of judgment; and
(c) a declaration that interest continues to accrue on the outstanding debt at the rate of 6.8 per cent up to the limit of $481,000 and at 28.95 per cent per annum for the balance that from the date of judgment up to the date of payment.
[70] The question of costs was not addressed in detail before me, but I note that the Bank claims costs on a solicitor/client basis pursuant to its agreement with Ms Coker. I note that such an agreement will normally be a final answer in such cases, but given that Ms Coker has not made submissions on this point I do not determine this point at the present time. Therefore, if the parties are unable to agree on costs, I grant leave for both parties to submit memoranda on costs within 10 days
of the date of this judgment.
Moore J
Solicitors:
Minter Ellison Rudd Watts, Wellington
Mr Patterson, Tauranga
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