Jasani v Vincent Capital Limited - [2018] NZHC 3367

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-2731

[2018] NZHC 3367

BETWEEN
SHAMEER JASANI

Plaintiff

AND

VINCENT CAPITAL LIMITED

Defendant

Hearing: 17 December 2018

Appearances:

G K Holm-Hansen and A L Barnett for the plaintiff M D Arthur and L C Bercovitch for the defendant

Judgment:

17 December 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 17 December 2018 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Hesketh Henry, Auckland Chapman Tripp, Auckland

JASANI v VINCENT CAPITAL LTD [2018] NZHC 3367 [17 December 2018]

[1] By application dated 12 December 2018, Mr Jasani seeks urgent interim injunctions restraining Vincent Capital’s sale at auction of properties at 280 and 282 Sunset Road in Sunnynook, and at 298 East Coast Road in Pinehill, all residential properties in Auckland North Shore suburbs. Vincent Capital’s sale by tender of another residential property at 16 Saltburn Road in Milford no longer is the subject of interim injunctive relief. Mr Jasani also seeks a direction any forced sale of the properties be conducted under this Court’s supervision.

Background

[2] Mr Jasani and associated Grow group entities (of each of which Mr Jasani is the sole director) guaranteed a $10.59m loan from Vincent Capital to a Grow group subsidiary, Grow Saltburn Limited. The loan – which was for a term of six months until 28 December 2018, but repayable on demand – was secured by registered mortgages over the above properties (and one other, at Prospect Terrace), and other securities. The loan’s terms included a requirement for sale of at least one of the properties by the end of each September and October 2018. None by then was sold.

[3] On 31 October 2018, Vincent Capital served notice of default on the guarantors, specifically for failing to sell the properties as required, and demanded repayment of the loan. On 12 November 2018, on continuing default, Vincent Capital put the property-owning Grow group entities into receivership.

[4] Meanwhile, on 17 October 2018, Grow Saltburn agreed to sell the Prospect Terrace property to a third party, for settlement on 16 November 2018. Vincent Capital did not consent to the proposed sale. Instead, the other properties are now for mortgagee sales: of the Pinehill and Sunnynook properties by auction on 20 December 2018, and of the Milford property by tender, now closing 31 January 2019 (but previously also proposed for December 2018). Mr Jasani’s counsel, Glen Holm- Hansen, explained he sought the injunction also only to extend to 31 January 2019.

[5] The Milford property is to be sold by tender in combination with an adjoining property at 23 Frater Avenue, also one of the secured properties, for the pending sale and purchase of which Grow Saltburn had paid a $280,000 deposit. Mr Jasani says the

scheme of the loan was to facilitate his development proposals for the properties, but particularly for Grow Saltburn…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jasani v Vincent Capital Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 3367
Decision Date: 17 December 2018

CaseChat Overview and Summary

In Jasani v Vincent Capital Limited, the plaintiff, Shameer Jasani, sought an interim injunction to prevent the defendant, Vincent Capital, from proceeding with the sale of certain residential properties. Jasani argued that the sales were not conducted in good faith and were oppressive. Vincent Capital claimed it was lawfully exercising its powers as mortgagee and sought to realise the secured assets due to the default by the borrower. The court was required to determine whether Jasani had a serious question to be tried and whether the balance of convenience and overall interests of justice favoured granting the injunction.

The court found that Jasani had not established a serious question to be tried. The court noted that Vincent Capital was entitled to protect and realise secured assets in circumstances of default, and the statutory duty under the Property Law Act 2007 did not extend to the decision or timing of the sale. As for the oppression claim under the Credit Contracts and Consumer Finance Act 2003, the court found that Jasani's evidence was speculative and did not demonstrate a contravention of reasonable standards of commercial practice. The court also found that Jasani had not shown that the balance of convenience favoured granting the injunction. Vincent Capital had a legitimate interest in concluding the sale process and preserving its recovery, while Jasani had not demonstrated a realistic prospect of loss not adequately compensable by damages.

The application for the interim injunction was dismissed. The court also declined to make an order for the sale of the properties to take place under the Registrar's supervision, as there was no power to do so in the circumstances. The court reserved costs for determination on short memoranda.

Orders