IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2022-404-002442
[2023] NZHC 16
BETWEEN CATHERINE PHYLLIS HANNON
First Applicant
CATHERINE PHYLLIS HANNON and TOMPKINS WAKE TRUSTEES 2019 LIMITED
Second ApplicantAND
SENIOR TRUST CAPITAL LIMITED
Respondent
Hearing: 16 January 2023 Appearances:
B J Burt for the Applicants
M J Tingey & C Morrison for the Respondent
Judgment:
19 January 2023
JUDGMENT OF TAHANA J
(Application for Interim Injunction)
This judgment was delivered by me on 19 January 2023 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
James Burt, Barrister, Auckland Murray Tingey, Barrister, Auckland
Couch Harlowe Kovacevich, Auckland TWA Legal, Auckland
HANNON v SENIOR TRUST CAPITAL LIMITED (Application for interim injunction) [2023] NZHC 16 [19 January 2023]
Introduction
[1] The applicants (Ms Catherine Hannon in her personal capacity and as trustee of the Catherine Hannon Investment Trust (Investment Trust), and Tompkins Wake Trustees 2019 Limited as trustee of the Investment Trust) seek an interim injunction to prevent a mortgagee sale of a unit at Kelliher Drive, Roy’s Bay, Wānaka (Unit R4). The application is opposed by the mortgagee, Senior Trust Capital Limited (Senior Trust).
[2] Unit R4 is part of a larger development at Roy’s Bay, Wānaka that was to be developed by Roy’s Bay Estate Limited (RBEL). Ms Hannon and Mr Anthony Hannon indirectly held 50 per cent of the shares in RBEL. Ms Hannon was also director of RBEL from 9 August 2016 to 12 April 2022.
[3]On 17 July 2020 Ms Hannon entered into a limited guarantee and indemnity of
$900,000 in favour of Senior Trust to guarantee lending to RBEL (Guarantee). Ms Hannon also entered into a mortgage over Unit R4 in favour of Senior Trust with a priority sum of $900,000.
[4] On 25 August 2021 Mr and Ms Hannon borrowed $150,000 from Senior Trust to pay RBEL creditors and this loan was also secured by the mortgage over Unit R4 (the Hannon Loan).
[5]The Hannon Loan remains outstanding. As at 30 September 2022, RBEL owed
$6,664,135.28 to Senior Trust. Ms Hannon understands that this amount has since been reduced to approximately $3,000,000.
[6] In June 2022 Senior Trust issued notices under the Property Law Act 2007 (PLA) demanding payment under the Hannon Loan and the Guarantee. While Ms Hannon put Unit R4 on the market, it was subsequently withdrawn in November 2022 and Senior Trust then marketed it for mortgagee sale by auction on 20 January 2023.
[7]The applicants allege five courses of action against Senior Trust:
(a)breach of contract for failing to repay the Hannon Loan from the proceeds of sale of another property (Unit R1) owned by RBEL;
(b)misrepresentation and breach of s 9 of the Fair Trading Act 1986 (Fair Trading Act) arising from alleged representations by Senior Trust that it would use the sale proceeds from Unit R1 to repay the Hannon Loan;
(c)breach of Senior Trust’s duty under s 176 of the…
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- [2023] NZHC 16
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