IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-6788 [2013] NZHC 1011
UNDER Part 12 of the High Court Rules
IN THE MATTER OF an application for summary judgment
BETWEEN WESTPAC NZ LIMITED Plaintiff
ANDYATISH MORAR PATEL & ANOR Defendants
Hearing: 6 May 2013
Appearances: M Powell and P Shackleton for Plaintiff
G Thwaite and S Kim for Defendants
Judgment: 9 May 2013
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
This judgment was delivered by me on
9 May 2013 at 5 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Simpson Grierson, Private Bag 92518, Wellesley Street, Auckland –
morgan.powell@simpsongrierson.com / phillip.shackleton@simpsongrierson.com
Kenton Chambers lawyers – ken@kentonlaw.co.nz
(Counsel: Mr G Thwaite - gthwaite@iprolink.co.nz)
WESTPAC NZ LIMITED V PATEL & ANOR HC AK CIV-2012-404-6788 [9 May 2013]
Background
[1] The plaintiff, Westpac New Zealand Limited (“Westpac”), applies for summary judgment against the defendants. This case arises out of two separate lending agreements which the plaintiff entered into with the defendants. The first was for the advance of funds to enable the defendants to purchase what the parties called the “Fitzgerald Property”. For that purpose on 12 May 2011 the plaintiff advanced a sum of $698,000 secured by first registered mortgage over the Fitzgerald Property. The second advance was of the sum of $272,000 secured by a registered mortgage pursuant to a loan agreement dated 30 June 2011 to enable the defendants to purchase what the parties described as the “Swanson Property”.
[2] The following chronology is taken from the submissions for the plaintiff. The matters stated are uncontested.
[3] Around May 2011, the defendants approached Westpac for a loan to purchase the Fitzgerald Property for investment purposes.
[4] As part of the application process, Westpac received:
a) a signed statement of assets and liabilities confirming the defendants had a net asset position of $346,000;
b) financial statements for Y & Zad Limited for the years ending 31
March 2010 and 31 March 2011 along with projections for the year ending 31 March 2012. The financial statements for the year ending
31 March 2011 showed a net profit of $177,683.50. The projected profit for the year ending 31 March 2012 was $177,598;
c) a registered valuation for the Fitzgerald Property showing a market value of $905,000;
d) a lease agreement for the Fitzgerald Property;
e) an agreement for sale and purchase for the Fitzgerald Property also showing a rental income of $3,000 per annum;
f) various bank statements;
g) various GST Returns; and
h) financial statements for S.Y. Trading Limited for the years ending 31
March 2009 and 31 March 2010.
[5] On 12 May 2011, Westpac advanced the defendants the sum of $698,000 to purchase the Fitzgerald Property pursuant to a Choices Home Loan Agreement dated
11 May 2011 (“91 Loan Agreement”). Westpac’s advances under the 91 Loan
Agreement were secured by a first registered mortgage over the Fitzgerald Property.
[6] Around June 2011, the defendants approached Westpac for a further loan for the purpose…
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