IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-4486 [2014] NZHC 106
BETWEEN ASB BANK LIMITED Plaintiff
ANDRUI YU LIN First Defendant
QIAN GUAN CHEN Second Defendant
Hearing: 5 February 2014
Appearances: N Moffat for Plaintiff
A Kashyap for Defendant
Judgment: 5 February 2014
ORAL JUDGMENT OF ASSOCIATE JUDGE BELL
Solicitors:
Bell Gully, Auckland, for Plaintiff
Aaron Kashyap, Epsom, Auckland, for Defendants
ASB BANK LIMITED v LIN and CHEN [2014] NZHC 106 [5 February 2014]
[1] The defendants have applied for a stay of enforcement pending their appeal to the Court of Appeal. On 26 September 2013 Peters J gave judgment against the defendants to the plaintiff for $134,350.68 plus interest and costs, a total of
$160,683.28. In October 2013 the defendants filed an appeal against this judgment and in November they applied for a stay of execution pending the appeal.
[2] The bank advises that it issued bankruptcy notices following the judgment, but those bankruptcy notices have not been served yet. Mr Moffatt says that in his view the notices are now likely to be stale and it will be necessary to issue fresh bankruptcy notices. The bank has held its hand on enforcement to await the outcome of this application.
Background
[3] The defendants are wife and husband. They, and two companies with which they are associated, borrowed from ASB Bank Ltd. The companies are Qian Kun International Ltd and Jack’s Ventures Ltd. The defendants cross-guaranteed each other’s borrowings from the bank and they each gave written guarantees for the borrowings by Qian Kun International Ltd and Jack’s Ventures Ltd. While the bank had security by way of guarantees for borrowings by Jack’s Ventures Ltd, and those guarantees were secured by mortgages over properties owned by the defendants, Jack’s Ventures Ltd did not give any security over any land it owned or over its other assets, for example, by way of a general security agreement.
[4] The defendants defaulted in meeting their obligations to the bank under their personal borrowings from July 2011 onwards. Jack’s Ventures Ltd defaulted from about September 2011 onwards. The bank made demands in October 2011, and followed up with notices under ss 119 and 122 of the Property Law Act 2007. When the defaults were not remedied, the bank had properties owned by the defendants, subject to mortgages, sold up. The bank’s case was that after it had sold up these properties there was a shortfall. The bank applied the proceeds of the sales towards the debt owed to it by Jack’s Ventures Ltd ahead of the defendants’ personal
indebtedness. The result was that Mr Chen, the second defendant, owed some
$71,745.62 and his wife owed $63,605.06. That left a residual debt owed by them both of $135,350.68. Those sums can be combined because they had guaranteed each other’s indebtedness to the bank. The bank’s case relied on standard bank term loan documents and standard bank guarantees which are drawn to protect the bank’s position in a wide variety of circumstances.
Continue reading ASB Bank Ltd v Lin
Sign in free to access the full text
- AGLC
- ASB Bank Ltd v Lin [2014] NZHC 106
- Case
- [2014] NZHC 106
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.