King v ASB Bank Limited - [2013] NZHC 84

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000561 [2013] NZHC 84

BETWEEN BRUCE JAMES KING Plaintiff

ANDASB BANK LIMITED Defendant

Hearing: 5 February 2013

Appearances: Plaintiff in person

Judgment: 7 February 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 7 February 2013 at 11.00 am
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors: Simpson Grierson, Private Bag 92518 Wellesley Street, Auckland 1141
Fax: (09) 307-0331 – M V Robinson

Copy to: B King, 5/5 Begbie Place, Sandringham, Auckland 1025
Email: bruce@solarpipe.co.nz

KING V ASB BANK LTD HC AK CIV-2013-404-000561 [7 February 2013]

[1] At 4.30 pm on 5 February 2013 Mr King filed proceedings against the ASB Bank Limited, together with an application for interim injunction to restrain the ASB from proceeding with a mortgagee sale by auction at 9.00 am on 7 February 2013. Mr King was unrepresented and his application was made without notice. I saw Mr King shortly after 5.00 pm in my chambers. At my request the Registrar attempted to contact Simpson Grierson, which was acting for the ASB on the mortgagee sale. There was no response either from the direct dial line of the legal executive who had been communicating with Mr King, nor from Simpson Grierson’s main switchboard.

[2] Because the following day, 6 February 2013, was a public holiday and the auction was scheduled for 9.00 am on 7 February 2013 I proceeded to hear Mr King’s application. I concluded that there was a serious question to be tried and that the balance of convenience favoured Mr King. He had provided an undertaking as to damages. I granted interim relief, with directions regarding service. I record my reasons below.

[3] Mr King is the owner of 5/5 Begbie Place, Sandringham. The ASB has a mortgage over that property securing advances, the exact amount of which was unclear to me. Mr King has been in arrears with his mortgage loan since mid-2012 and the arrears currently stand at over $23,000. Late last year the ASB commenced steps to sell the property. Simpson Grierson advised Mr King by letter dated 5
December 2012 of the date and time of the auction.

[4] Mr King advanced his application on two general bases. The first was a wide ranging complaint about the ASB’s motivation in taking steps to sell the property in the face of Mr King’s complaints to the Banking Ombudsman. These complaints would not have warranted consideration as grounds for an interim injunction and I do not discuss them further.

[5] The second ground was more specific, namely that the ASB had failed to properly advance the negotiations that were on foot regarding a proposal to sell a half-share in the property to a friend of Mr King’s in order to raise sufficient funds to clear the arrears. This, I concluded, had sufficient substance to disclose a serious issue to be tried.

[6] Although Mr King described the relevant facts in…

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.

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Details

Case: [2013] NZHC 84
Decision Date: 7 February 2013

CaseChat Overview and Summary

The plaintiff, Bruce James King, filed proceedings against the ASB Bank Limited on 5 February 2013, seeking an interim injunction to prevent the bank from proceeding with a mortgagee sale by auction scheduled for 7 February 2013. The defendant, ASB Bank Limited, had a mortgage over Mr King's property at 5/5 Begbie Place, Sandringham, and had been in arrears since mid-2012. The amount of the arrears was over $23,000. Mr King had been in negotiations with a friend, Hamish Reid, who proposed to purchase a 50% interest in the property to raise sufficient funds to clear the arrears. Mr King argued that the bank had failed to properly advance these negotiations.

The court had to determine whether there was a serious question to be tried and whether the balance of convenience favoured the plaintiff. The court found that Mr King had provided an undertaking as to damages, and the balance of convenience plainly favoured him. The property at Begbie Place was not only Mr King's home but also the premises from which he ran his business. On the other hand, if it transpired that Mr Reid's proposal could not be implemented or was unsuitable for some reason, the bank was not disadvantaged because it could simply proceed with a fresh auction.

The court granted the interim injunction, restraining the ASB Bank Limited from proceeding with the sale of 5/5 Begbie Place until further order of the court. The matter was to be listed again before the court at 11.45 am on Friday, 8 February 2013.

Orders