Tong v ANZ Bank New Zealand Limited (35976)

[2015] NZHC 1473

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1151 [2015] NZHC 1473

BETWEEN

YUELEI TONG

Plaintiff

AND

ANZ BANK NEW ZEALAND LIMITED (35976)

First Defendant

YEWEN WANG Second Defendant

Hearing:	25 June 2015
Appearances:	R M Dillon for Plaintiff T B Fitzgerald for First Defendant
Judgment:	25 June 2015

JUDGMENT OF DUFFY J

Solicitors:

Queen City Law, Auckland

Bell Gully, Auckland

Counsel:

Ross M Dillon

TONG v ANZ BANK NEW ZEALAND LIMITED (35976) [2015] NZHC 1473 [25 June 2015]

[1]      The first defendant held a registered mortgage security over a residential property land 24  Longhros Place,  Pinehill, Auckland (the property)1   which  was owned by the second defendant.   The plaintiff had unconditionally purchased the property  from  the  second  defendant.    The  plaintiff  had  take  possession  of  the property  and  had  made  improvements  to  the  property.    The  plaintiff  wanted settlement of the purchase.  However, the second plaintiff had departed the country

and by her conduct had refused to complete the settlement.  She was also in default on the mortgage payments to the first defendant.

[2]      On 25 June 2015 I made orders directing the first defendant to transfer the mortgage to the plaintiff on payment by the plaintiff to the defendant of all amounts and performance of all obligations secured by the said mortgage including in respect of the costs and expenses on a fall indemnity basis of the first defendant.  The order was made without prejudice to the claims, including costs, by the plaintiff against the second defendant and by the second defendant as against the plaintiff pending further order of the Court.  Following the making of those orders I directed the claim against the first defendant be struck out with no issue as to costs upon performance of the transfer of the mortgage from the first defendant to the plaintiff.

[3]      The proceeding involved a unique set of circumstances.  The first defendant wanted to realise its security and was intending to proceed to a mortgagee sale.  The plaintiff was seeking an order of specific performance against the second defendant, who had taken no steps to defend the proceeding.  The plaintiff was concerned that he might lose his right to possession of the property as a result of the mortgagee sale. Further the plaintiff was prepared to pay the mortgage debt and associated costs in order to avoid losing the property.

[4]      The plaintiff had raised interesting arguments based on the Property Law Act

2007 and in equity to support his rights to redemption of the mortgage.  The first defendant did not accept those legal arguments but nonetheless recognised the difficult situation in which the plaintiff found himself.  In those circumstances the

first  defendant  helpfully  and  responsibly  decided  that  it  would  adopt  a  neutral

1      Lot  127,  Deposited  Plan  372324,  registered  under  unique  identifier  292592  in  the  North

Auckland Land Registry.

position and not oppose the Court making an order which enabled the mortgage to be transferred to the plaintiff. In this way the first defendant received payment of its mortgage debt and the plaintiff obtained relief from the prospect of a mortgagee sale proceeding.

[5]      The plaintiff will now be taking steps to proceed by way of formal proof against the second defendant.

“Duffy J”