ANZ National Bank Ltd v Claydon

[2012] NZHC 788

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003556 [2012] NZHC 788

BETWEEN  ANZ NATIONAL BANK LIMITED Plaintiff

ANDGLENIS JOAN CLAYDON Defendant

Hearing:         2 November 2011

Counsel:         S S Eden/H X Lee for plaintiff

S R Carey for defendant

Judgment:      14 May 2012

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 14 May 2012 at 3pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

S S Eden Shieff Angland, P O Box 2180, Shortland Street, Auckland

Edwards Clarke Dickie, P O Box 105-629, Auckland

Counsel:

S Carey, Bankside Chambers, PO Box 848, Shortland Street, Auckland

ANZ NATIONAL BANK LIMITED V GLENIS JOAN CLAYDON HC AK CIV-2011-404-003556 [14 May

2012]

[1]      The plaintiff, ANZ National Bank Limited (ANZ), has applied for summary judgment against the defendant, Mrs Claydon, for the balance of money due in respect of loans made to Mrs Claydon and her husband as trustees of a family trust. Judgment is sought for a balance still owing after ANZ exercised its power of sale over two security properties. ANZ is not suing Mr Claydon as he was, at all material times, an undischarged bankrupt.

[2]      Mrs Claydon opposes summary judgment.  She does not dispute her liability to ANZ, but says that she is not liable for the full amount being sought.  She says that ANZ failed, when exercising its power of mortgagee sale, to comply with its statutory duty in relation to price.  Her reason for saying this is that ANZ accepted a tender for one of the security properties rather than an agreement presented to it by the trustees for a higher price (offered as part of a proposal for sale of both properties).

[3]      The primary issue for determination is whether the amount sought by ANZ should be reduced having regard to the terms on which the trustees presented their proposal.  There is a secondary issue as to whether the matter can be decided by way of summary judgment.

The background

[4]      ANZ made several loans to Mrs Claydon and her husband as trustees of the Claydon Family Trust (the trust).  The loans were secured by mortgages over two properties owned by the trust – one in Marsden Avenue, Mt Eden, Auckland, and the other in Hinemoa Place, Snells Beach, Auckland.

[5]      The trustees defaulted on their loan repayments and remained in default from July 2008.   ANZ issued the requisite notices under the Property Law Act 2007, which expired in March 2009.   On 25 September 2009 ANZ gave notice to the trustees that it was putting the properties up for sale by tender, closing on 27 October

2009.

[6]      The  marketing  of  the  properties  was  disrupted  by Mr  and  Mrs  Claydon refusing  internal  access,  removing  sale  signs,  and  falsely  informing  potential

purchasers that the properties had been sold. ANZ’s solicitors wrote to the Claydons (through their solicitor) expressing concern about the potentially negative effect that the refusal to provide access might have on sale prices, but the Claydons continued to refuse access.

[7]      On 22 October 2009 the solicitor for the trustees, Mr Naidu, informed the solicitor for ANZ, Ms Henwood, that the trustees  were attempting to arrange a refinancing package.

[8]      Tenders closed on 27 October 2009.  The deadline for acceptance by ANZ

was 5pm on 3 November 2009.

[9]      The highest tender received for the Hinemoa Place property was by a Mr D V MacCarthy for $318,000.  The highest tender for the Marsden Avenue property was submitted  by  a  Mr  D  E  Smyth  and  was  for  $765,000.    Both  tenders  were accompanied by a deposit cheque.  The tenders did not contain the usual warranties about the property.

[10]     Mr Smyth was a barrister acting for Mr and Mrs Claydon.  His tender was submitted pursuant to an understanding between him and the Claydons that, if the tender was successful, the trustees would purchase Marsden Avenue back from Mr Smyth when they were able to obtain finance.

The trustees’ proposal

[11]     On 30 October 2009 ANZ’s solicitors sent an email to the trustees’ solicitors, informing them that ANZ was considering the tenders it had received, together with a proposal by the trustees to refinance Marsden Avenue and sell Hinemoa Place. They said that ANZ had to communicate acceptance of the tenders by Tuesday 3

November 2009, and would allow the trustees until that Tuesday morning to provide a signed agreement for the sale of Hinemoa Place for $450,000, conditional only upon ANZ’s acceptance and accompanied by a distribution statement outlining the net proceeds of sale, and a solicitor’s undertaking that the Trust had unconditional offers of finance for Marsden Avenue.

[12]     On 2 November 2009, ANZ’s solicitors informed the trustees’ solicitors by

fax that the trustees needed to provide ANZ with the agreement and undertaking by

2pm on 3 November 2009.  The trustees were also informed that ANZ would accept the tenders received if the Claydons were unable to provide those documents to the satisfaction of ANZ before that time.

[13]     The trustees did not submit the documents by 2pm on 3 November 2009. Sometime after 2pm Ms Henwood spoke with Mr Naidu by telephone.  Either in that conversation or in a subsequent phone call, it was agreed that Mr Naidu would fax the trustees’ proposal to Ms Henwood.  There is disagreement over the detail of this conversation (or the conversations, if there was more than one) in relation to what was conveyed about the proposal, the number of phone calls and whether the 2pm deadline was extended.

[14]     Subsequently, Mr Naidu sent a fax to Ms Henwood attaching two agreements

(in standard terms) and containing the following statement:

Our client has received two unconditional offers for the above properties. We are instructed that 12 Hinemoa Place is being purchased by our client’s Accountant  for  $450,000  and  86  Marsden Avenue  by  a  Mr  Prasad  for

$675,000, total sale value being $1,125,000.00.   Both agreements are unconditional and have settlement date of 22 November 2009.   These agreements are presented on the understanding that these agreements will be accepted as a package.

[15]     There is a conflict between the evidence of Mr Naidu and Ms Henwood as to what followed:

(a)      Mr Naidu says that after he sent the fax he heard nothing further from Ms Henwood.  He says that on 5 November 2009 he learnt that ANZ had accepted tenders for both properties and that he wrote to Ms Henwood requesting an explanation.

(b)Ms Henwood says that Mr Naidu had told her clearly, before sending his fax, that the proposal was “a package deal” and that ANZ could accept both offers but not one individually.   She says that, upon receiving  the  fax  from  Mr  Naidu  and  obtaining  instructions  from ANZ, she called Mr Naidu and asked if his clients were prepared to

sell the Hinemoa Place property only.  She says that Mr Naidu advised her that the offer was “a package deal” only.  She adds that she could hear Mr Claydon speaking to Mr Naidu in the background.

[16]     Ms Henwood says that on the basis that the trustees’ proposal was “a package deal” ANZ proceeded to accept the tenders it had received from Mr MacCarthy and Mr Smyth.   She says that she was contacted the following day by Mr Claydon directly who expressed his dismay that the proposal had not been accepted. She says she made it clear to him that ANZ would have considered accepting the offer on Hinemoa Place alone had that option been available.  Ms Henwood made a file note of that conversation:

I  record  my  telephone  discussion  with  Kerry  Claydon  on  the  4th    of

November 2009 at 11:50 a.m. as follows:

1.Kerry was phoning to find out the outcome of the tender on Snells and whether it had been accepted.  I confirmed that it had.  Kerry noted that $318,000 was very low for this property.   I pointed out that while it was below the market value of the property, it was a fair price for a mortgagee sale especially considering access had not been allowed during the marketing period.  I confirmed to Kerry that ANZ had not accepted the proposal he put forward yesterday afternoon....

2.Kerry expressed his dismay that the Bank did not accept his proposal given that it was more money than the Bank would be receiving on tender.  I pointed out that the Bank went for the certainty of having a definite agreement on foot where they are currently holding deposit cheques as against the uncertainty of consenting to this agreement. Kerry reiterated that we should have accepted the $450,000 on Hinemoa.  I advised that his solicitor Vijay had made it very clear that ANZ could not simply accept the offer on Hinemoa and proceed with tender on Marsden.  I pointed out that our client would be more than happy to have accepted the $450,000 on Hinemoa as this was much more than they had been able to achieve in their mortgagee sale, but that Vijay had made it very clear that this was not an option, that the proposal was a “package deal”...

[17]     On 5 November 2009 Mr Naidu wrote to ANZ requesting an explanation as to why the Hinemoa Place agreement had not been considered.  Ms Henwood replied on ANZ’s behalf, on 6 November 2009, reiterating ANZ’s reasons for choosing the tender for Hinemoa Place over the proposal submitted by the trustees:

As  previously  communicated,  our  client  would  have  been  prepared  to consent to the sale of 12 Hinemoa Place for $450,000.   However we note your advice that this was a “package deal” and that your client was not prepared to sell Hinemoa for this place if our client would not also consent

to  the  sale  of  86  Marsden Avenue  pursuant  to  the  agreement  provided. Accordingly, our client has accepted the highest tenders.

[18]     In her reply, Ms Henwood also noted that the proposal was not within the required timeframe (and was just before close of business on the day on which ANZ had to communicate acceptance of the tenders); it did not otherwise meet the criteria set by ANZ for a proposal; the agreements did not provide for payment of deposits; and the agreements  were signed by Mr Claydon, who was  a bankrupt, without consent of the Official Assignee.  She added that ANZ had taken all reasonable steps to obtain the highest price possible and referred to having written to the trustees, urging them to allow access to the properties or risk achieving lower sale prices.  It is noteworthy that there was no reply to Ms Henwood’s advice.

Principles for summary judgment

[19]   The principles that the Court applies when determining applications for summary judgment may be found in the following succinct summary by the Court of Appeal in Krukziener v Hanover Finance Limited:[1]

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 1 at 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 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 331 at 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).

[1] Krukziener v Hanover Finance Ltd (2008) NZCA 187 at [26].

[20]     Whilst the onus is on ANZ to show that Mrs Claydon has no defence, Mrs

Claydon must provide some evidential foundation for any defence that she raises.[2]

The essential issue

[2] Australian Guarantee Corp (NZ) Ltd v Mcbeth [1992] 3 NZLR 54 (CA) at 59.

[21]     It is common ground that Mrs Claydon is liable for any amount still due to ANZ after sale of the security properties, subject to her right to set-off any damages payable to her by ANZ for any breach of its statutory duty under s 176 of the Property Law Act 2007 in relation to the mortgagee sale.

[22]     The relevant parts of s 176 read:

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

...

(c)      any covenantor....

[23]     It is again common ground that ANZ owes this duty to Mrs Claydon.  The essential issue is whether she has an arguable case that ANZ breached its duty by accepting  the  tender  for  Hinemoa  Place  after  the  trustees  had  presented  their proposal with an agreement at a substantially higher price.  If so, Mrs Claydon has an arguable defence by way of set-off for the difference between the two prices, as well as a related adjustment of interest.

The arguments

[24]     ANZ says that the case turns on the terms of the last minute proposal put to it by the trustees.   Although the parties disagree about some of the surrounding circumstances, ANZ says that Mrs Claydon cannot (and has not) contested the fact that the agreements were presented as “a package”.  It contends that, faced with that stipulation, its only options were to accept both agreements presented by the trustees, or the highest tender it had received on each property.  It says that, faced with that choice, it was entitled to and did in fact make a commercially practical and prudent

decision to reject the last minute proposal and to accept the highest tenders it had received. In support of this, ANZ says:

(a)      If it had accepted the proposal, it would have had to relinquish the significantly higher price in the tender for the Marsden Avenue property and a lower but certain price (supported by a deposit) for the Hinemoa Place property.

(b)It had to contrast the certainty of definite sales under the tenders with the uncertainty of the agreements presented by the trustees: although the latter were unconditional, ANZ was unsure whether they were binding because Mr Claydon was a bankrupt, they were not supported by payment of deposits, and the late presentation coupled with the trustees’ previous conduct in refusing inspection of the interior and seeking to frustrate the mortgagee sales left ANZ with a concern that the proposal was a tactic to stop it accepting the tenders.

[25]     Counsel for ANZ acknowledged that there was a dispute as to whether ANZ had  enquired,  after  receipt  of  the  proposal,  into  whether  it  could  accept  the agreement  on  Hinemoa  Place but  not  the agreement  on  Marsden Avenue.    She submitted,  however,  that  the  Court  did  not  need  to  resolve  that  dispute  as  the proposal stated expressly that the agreements were presented as “a package”, and there was no suggestion in the evidence by and for Mrs Claydon that the trustees or their solicitor informed ANZ orally that the Hinemoa Place agreement could be accepted on its own.   Counsel also submitted that it was not in ANZ’s interest to accept the tender on Hinemoa Place if it was able to accept the agreement presented by the trustees.

[26]     Lastly, counsel for ANZ argued that even if ANZ had been able to ignore the trustees’  stipulation  that  both  agreements  had  to  be  accepted,  and  accept  the Hinemoa Place agreement only, it was justified in rejecting that agreement (and in accepting the lower tender) in light of the uncertainties already mentioned about the proposal, and the risk of losing a genuine sale by tender.

[27]     The case for Mrs Claydon is that the tender price which ANZ accepted was not the best price reasonably obtainable at time of sale: ANZ had the unconditional agreement presented by the trustees for $132,000 more, and ANZ was able to accept that agreement regardless of the stipulation that the trustees had presented the two agreements as a package.  The agreement was not tied to the sale of the Marsden Avenue property and could have been enforced against the purchaser.

[28]     Counsel submitted that the other matters advanced by ANZ for choosing the tenders  over  the  agreements  presented  by the  trustees  were  not  material  to  the question of whether ANZ had fulfilled its statutory duty, and there was no evidence that those other matters had motivated ANZ at the time. Counsel pointed to the following:

(a)      ANZ did not raise as  a concern the absence of a deposit for the agreements presented by the trustees.

(b)      ANZ has put forward no evidence to support its concern that the

trustees’ purchasers might not complete their agreements.

(c)      ANZ had only sought deposits of 5% for their tender, being $15,900 for the Hinemoa Place tender. The plaintiff cannot discharge its statutory duty by rejecting a price $132,000 higher than the accepted tender because of the absence of such a small deposit.

(d)There  was  no  evidence  that ANZ knew  that  Mr Claydon  was  an undischarged bankrupt at the time of signing the agreement (the first reference  to  that  was  in  Ms  Henwood’s  letter  dated  6  November

2009), but in any event his bankruptcy did not prevent him from signing as trustee.

(e)      The trustees’ prior conduct was an insufficient basis for an inference that presentation of the proposal was a tactic to defer acceptance of the tenders, and in any event this proposition implies some collusion by the purchaser and there was no evidential basis for that view.

[29]     Counsel for Mrs Claydon referred to ANZ’s evidence that its solicitor (Ms Henwood) had enquired as to whether Hinemoa Place could be sold separately, and submitted that although that evidence is disputed, it is an indication that that was a reasonable step to take before accepting the tender.

[30]     Finally, counsel argued that even if it was found that the proposal required acceptance of both agreements put forward by the trustees, the proposal ought to have been accepted as it still produced a price that was $42,000 better than the two highest tenders.

The test under s 176

[31]     The principles that the Court applies when considering whether a mortgagee has acted in breach of s 176 of the Property Law Act 2007 were reviewed comprehensively in Crown Money Corporation Ltd v Pink-Martin:[3]

[3] Crown Money Corporation Ltd v Pink-Martin HC Auckland CIV 2008-404-000297, 5 September

2008 at [32]. The principles were applied recently in ANZ National Bank Ltd v Manthorpe HC Wellington, CIV 2011-485-001, 6 October 2011 where the Court also referred to other cases that have applied those principles.

a)Section  176  of  the  Property  Law  Act 2007  and  its  predecessor s 103A of the Property Law Act 1952, codify the duty which, under the general law, a mortgagee exercising a power of sale would be taken to owe to the persons mentioned in s 176 of the Property Law Act 2007: Apple Fields v Damesh Holdings Ltd at 728 (PC).  I have already mentioned that this now has been extended to cover guarantors.

b)The  duty  of  care  is  concerned  with  obtaining  the  best  price reasonably obtainable as at the time of sale: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd at [70].  It is a duty to take reasonable care.  It does not necessarily follow that the best price reasonably obtainable will be achieved.

c)The duty has to be measured at the time of the sale: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd at [75]. The duty arises at the time the decision to sell is made: Tse Kwong Lam v Wong Chit Sen and Others at [77].  There is thus a need to analyse the steps taken once the decision to sell is made, up to the time of sale.

d)The duty of care does not qualify the mortgagee’s right to decide if and when to sell: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd at [70]; Downsview Nominees Ltd v First City Corporation Ltd [1993] 1 NZLR 513.

e)When deciding for the purposes of s 176 whether reasonable steps have been taken by a mortgagee to obtain the best price, the steps taken by the mortgagee and those acting with it must be looked at in the round.  The issue is a commercial one to be viewed in practical commercial terms: Apple Fields v Damesh Holdings Ltd at 729.

f)        Assistance in determining the issue mentioned in (e) above can be found  by  considering  the  steps  endorsed  by  Fisher J  in  Harts Contributory Mortgages Nominee  Co  Ltd  v  Bryers    HC AK  CP

403im00 19 December 2001 at [43] where the following matters were mentioned:

[c]       Where the security is substantial, or specialised property is involved, it will usually be necessary for the mortgagee to obtain and act upon specialised advice as to the method of sale: Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54 (PC). Appointing a competent agent to sell does not discharge the mortgagee’s duties, but since its duty is ultimately only one of reasonable care, putting the matter in the hands of a competent agent will usually go a long way towards discharging the mortgagee’s duties.

[d]       In  the  normal  course  the  proposed  sale  will  need  to  be advertised with an adequate description of the property’s attributes and, within reason, widely enough to attract all possible purchasers.  In some cases this will need to extend to both general and specialist publications: See Kwong supra at p 61; Ansell v NZI Finance Ltd (unreported, Wellington Registry, A434/83, Quilliam J, 14 May 1984).

[e]       There is no obligation to postpone the sale in the hope of a better price later, or to break up the assets and sell in a piecemeal  manner if this can  only be carried  out  over  a substantial period or at a risk of loss: Kwong supra at p 59.

[f]       When  assets  are  sold  by  tender  or  auction,  a  reasonable period must usually be allowed for purchasers to inspect the property and arrange finance before submitting bids: see Fairer   Fishing   Co   Ltd   v   Broadlands   Finance   Ltd (unreported,  Timaru  Registry,  A35/77,  17 August 1984); discussed by Ross, supra, along with Ansell v NZI Finance Ltd.

g)        For  the  breach  of  duty  to  be  actionable  there  must  be  proof  of damage: Apple Fields Ltd v Damesh Holdings Limited at 729 PC.

[32]     In Moritzson Properties Ltd v McLachlan this Court further stated that a mortgagee sale for a price less than the current market value assessed by valuers does not, of itself, establish a breach of duty.[4]  However, sale at a gross undervalue

may indicate a failure to take reasonable care.

[4] Moritzson Properties Ltd v McLachlan (2001) 9 NZCLC 262,448 (HC) at [61].

[33]     The principles of particular significance on the present application are:

(a)      The duty is to take reasonable care to obtain the best price reasonably obtainable and that does not necessarily mean that the best price will be obtained.

(b)Whether the mortgagee has complied with the duty is to be assessed in the context of all the steps taken up to the point of sale.

(c)      Those steps are to be considered as a whole and from a practical, commercial view point.

(d)There is no obligation to postpone the sale in the hope of a better price if to do so carries a risk of significant delay or loss.

(e)      When evaluating the mortgagee’s decision, the Court can take into account that, in the absence of bad faith, the mortgagee shares with the mortgagor and a guarantor an incentive to obtain the best price, and it is not lightly to be assumed that the mortgagee has acted in a way that is contrary to its own interests as well as the interest of the others.[5]

Discussion

[5] Harts Contributory Mortgages Nominee Co Ltd v Bryers HC Auckland CP403-IM00, 19 December

2001 at [43](i); applied in ANZ National Bank Ltd v Taylor HC Auckland CIV 2010-404-000201, 17

December 2010.

[34]     Counsel for Mrs Claydon focussed his argument, understandably, firstly on the $132,000 difference between the tender for Hinemoa Place and the agreement presented by the trustees and, secondly and alternatively, on the $42,000 difference between the tenders and the agreements if treated as a package.  However, that is to focus on the best price, rather than whether ANZ acted reasonably.  ANZ’s actions must be considered objectively and in the context of the steps taken from the time

that it decided to exercise its power of sale up to the time of sale.

[35]     The  starting  point  must  be  that  Mrs  Claydon  does  not  challenge ANZ’s entitlement to proceed with a mortgagee sale or the steps it took to advertise the property. Those are appropriate concessions on the facts before the Court.

[36]     It is also significant that Mrs Claydon has not challenged the evidence that the trustees denied prospective purchasers access to the interior of the property and took  other  steps  to  resist ANZ’s  marketing  efforts.    It  is  also  clear  that ANZ encouraged the trustees to put forward specific proposals for sale of Hinemoa Place (and refinancing of Marsden Avenue), and indicated that it would take them into account, but had a deadline of 5pm on 3 November 2009 for acceptance of tenders. Its stipulation that any proposal be presented by 2pm on 3 November 2009 was entirely reasonable, as was its approach (through its solicitor) after the deadline passed to check whether the trustees were still intending to put the indicated proposal forward.

[37]     The final significant contextual factors are that the proposal received after

3pm on 3 November 2009 differed from that previously indicated in that Marsden Avenue was to be sold rather than refinanced and, very significantly, was expressly put forward as a package.

[38]     ANZ was left in a difficult position and it had to make a practical judgment. I accept its evidence that it would have accepted the trustees’ agreement on Hinemoa Place if that was open to it.  Although I do not have to decide the point, it would have been a reasonable and practical course to have taken the agreement for an additional $132,000, notwithstanding the absence of any deposit on that agreement.

[39]     However, the proposal expressly denied ANZ the option of accepting the

Hinemoa Place agreement solely.  No reason was advanced in the fax of 3 November

2009, or since, for stipulating that the agreements were to be considered together. ANZ had to balance the trustees’ behaviour up to that point, including the two-week delay in presenting the proposal indicated on 22 October 2009 and the lack of background to and deposit on the agreements, against tenders received from a proper marketing process and supported by deposits totalling $53,650 (bearing in mind that it had had no payments from the trustees for 15 months).  It was obliged to advise tenderers of the outcome of the tenders by 5pm.  The tender on Marsden Avenue was

substantially better than the agreement presented by the trustees, and the tender for Hinemoa Place was within $7,000 of the forced sale valuation for that property ($325,000) (which is explicable in view of the inability to obtain access to the interior).  The Trustees had previously signalled the possibility of an agreement on Hinemoa Place, but had given ANZ no information about the circumstances of the agreement  on  Marsden Avenue or  the reasons  for linking  the two.    It  was  not reasonable to expect ANZ to unilaterally stipulate acceptance of the Hinemoa Place agreement only in light of the express stipulation that the proposal was “a package”.

[40]     Counsel for Mrs Claydon placed considerable emphasis in his argument on the dispute between solicitors as to whether Ms Henwood went back to Mr Naidu after receiving the proposal to ask whether the trustees would allow acceptance of the agreement on Hinemoa Place alone.  He submitted that the matter was unsuitable for summary judgment for that reason.  Although Ms Henwood’s version of events seems  more  likely  (it  was  in  ANZ’s  interest  to  take  that  agreement  if  it  was available), and her version is supported by her file note of the conversation with Mr Claydon the following day, I am unable to resolve the conflict on the basis of the affidavit evidence.  However, I do not need to do so.

[41]     Mrs Claydon does not contend (and there is no evidence in any event which could support the proposition) that after Mr Naidu sent his fax the trustees told ANZ that they would sell Hinemoa Place on its own.  ANZ had to make a decision based on the expressed stipulation in the fax that the agreements had to be taken as “a package”.

[42]     There is no obvious reason for stipulating that the agreements were to be treated as “a package”, other than some undisclosed tactical reason.  The question before the Court is whether ANZ acted reasonably in accepting the tenders in the face of that stipulation and the fact that the agreements were presented to it less than two hours before it had to communicate acceptance or rejection of the tenders.  I do not  accept  that ANZ  had  a  duty to  inquire  as  to  its  ability to  accept  only the agreement on Hinemoa Place in the circumstances of this case.

[43]     I  do  not  need  to  address  further  the  other  matters  which  Ms  Henwood referred to in her explanation to Mr Naidu on 6 November 2009.  I accept that they

may have been considerations in light of the late notice (leaving ANZ little time to weigh them fully) but the requirement to take the agreements as “a package” was clearly the compelling factor.

Decision

[44]     Taken together, the trustees’ resistance to the mortgagee sale process, the delay in presenting the proposal, and the unexplained presentation of the agreements as “a package” provide a basis for uncertainty over the “package”.  In that context, and taking into account the timeframe within which ANZ had to decide, it was reasonable  for ANZ  to  reject  the  uncertainties  of  the  package  in  favour  of  the certainties of tenders obtained in an open and proper sales process.   As I have already said, it is not necessary to resolve the differences over what happened on that last afternoon.  There is no dispute that the agreements were presented to ANZ as a package  and,  viewed  in  context, ANZ  acted  reasonably  in  proceeding  with  the tenders it had received. Therefore, Mrs Claydon has no defence to ANZ’s claim.

[45]     ANZ is entitled to summary judgment in accordance with its claim.

[46]     ANZ is also entitled to an order for costs and disbursements on a reasonable solicitor/client basis.  If the parties cannot agree on them within two working days, the plaintiff is to file and serve a memorandum as to the costs and disbursements being sought within a further five working days, and the defendant is to file and serve a memorandum within yet a further five working days.  I will determine the reasonableness  of  the  costs  and  disbursements  sought,  on  the  basis  of  those

memoranda.

Associate Judge Abbott