ANZ National Bank Limited v Taylor HC Wellington Civ-2011-485-880

[2011] NZHC 1312

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-880

BETWEEN  ANZ NATIONAL BANK LIMITED Plaintiff

ANDANDREW JOHN TAYLOR AND LINDA JOAN REITHOFER-TAYLOR

Defendants

Hearing:         19 July 2011

(Heard at Wellington)

Counsel:         Mr Hamilton - Counsel for the Plaintiff

No appearance for the Defendants

Judgment:      19 July 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Gibson Sheat, Lawyers, PO Box 2966, Wellington

ANZ NATIONAL BANK LIMITED V AJ TAYLOR AND LJ REITHOFER-TAYLOR HC WN CIV-2011-485-

880 19 July 2011

[1]      Before the Court is an application for summary judgment by the plaintiff against the defendants.

[2]      Although there is no formal Notice of Opposition to the present application, yesterday 18 July 2011 the Court received a letter from a Mr Clive Gardner (the Gardner letter), a lawyer of Mount Maunganui, with certain attachments on behalf of the defendants.   This set out certain information regarding the present proceeding and enclosed a letter dated 8 July 2011 from the first-named defendant.

[3]      The background to this matter involved the defendants borrowing a sum of

$1,872,500.00 on 25 August 2006 from the plaintiff bank.  Security for this loan was by way of first registered mortgages over 3 apartments situated at 1 Marine Parade, Paraparaumu Beach.

[4]      It  appears  the  defendants  fell  into  default  under  their  loan  arrangements between October 2008 and June 2009 and, following the issue of a s 119 Property Law  Act  Notice  which  went  unremedied,  the  plaintiff  exercised  its  right  as mortgagee to sell the three apartments in question.

[5]      Following the sale of the apartments the shortfall of the loan outstanding from the defendants amounted to $1,044,310.79.

[6]      The plaintiff has apparently demanded payment of this shortfall from the defendants but the defendants have not paid this sum.  The current proceedings are issued seeking summary judgment for this shortfall amount plus interest and costs.

[7]      From the Gardner letter received by the Court and the accompanying letter from the first-named defendant, it is apparent that the defendants do not intend to provide any formal  Notice of  Opposition  or defence  to  the present  application. Instead, they put before the Court certain matters which they ask are taken into consideration here. Those matters appear to involve general complaints as to the sale amounts  achieved  by  the  plaintiff  for  the  mortgagee  sale  of  the  properties  in question.    It  is  presumed  that  this  is  effectively  a  complaint  pursuant  to  the provisions of s 176 of the Property Law Act 2007.

[8]      On  this,  however,  the  sworn  evidence  before  the  Court  regarding  the mortgagee sale of the apartments is contained  in the affidavit of Alison Cherie Mannix-Kerr dated 14 April 2011 filed on behalf of the plaintiff.  In that affidavit as an Exhibit at “AMK11” is a valuation dated 17 December 2009 from Robertson Valuations Ltd of the properties in question.   This indicates that two of the three properties were sold for an amount at or exceeding the forced sale valuation figures provided for by the valuers.  The third property was sold for an amount slightly less than the forced sale value.

[9]      There was no other formal evidence before the Court regarding what might be appropriate for sale values of these properties I am satisfied that the material provided to the Court on behalf of the defendants (which also seems to include part of the Robertson Valuations Ltd valuation) does not in any way suggest that the plaintiff as mortgagee has not fulfilled its obligations in terms of s 176 Property Law Act 2007 when selling the apartments.

[10]     That said, there is effectively no defence from the defendants before the Court to the present summary judgment application.   Certainly, there is no formal Notice of Opposition or affidavit filed in terms of r 12.9 High Court Rules as I have indicated above and the Gardner letter and the other material provided to the Court at the eleventh hour on behalf of the defendants does not, in my view, alter the position.

[11]     That said, the plaintiff in its application for summary judgment, in my view, has satisfied the requirement in the High Court Rules to establish that the defendants have no defence to the claim brought by the plaintiff.

[12]     Summary   judgment   is   therefore   granted   to   the   plaintiff   against   the defendants, Andrew John Taylor and Linda Joan Reithofer-Taylor, in terms of the plaintiff’s statement of claim and Memorandum from counsel dated 18 July 2011 for

the following sums:

(a)	The amount claimed in the plaintiff’s statement of claim	$1,077,993.85
(b)	Interest at the contractual rate of 6.45% p.a. from 3 March 2011 to 18 July 2011 (138 days at $185.97

per day)  $     25,663.86

[13]     In addition, costs are awarded to the plaintiff against the defendants as set out at para 3 of the 18 July 2011 Memorandum from counsel for the plaintiff totalling

$7,332.00 together with disbursements also set out in that Memorandum totalling

$1,448.70.

[14]     The total amount for which summary judgment is therefore ordered against the defendants is $1,112,438.30.

‘Associate Judge D.I. Gendall’