ANZ National Bank Limited v Carter [2012] NZHC 1145 (24 May 2012)

Last Updated: 16 July 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-1089 [2012] NZHC 1145

BETWEEN ANZ NATIONAL BANK LIMITED Plaintiff

AND NEIL LAWRENCE CARTER,

ROCHELLE MARIA CARTER AND REX A HARDING TRUSTEE COMPANY LIMITED AS TRUSTEES OF A TRUST CALLD THE MARIA TRUST

First Defendants

AND NEIL LAWRENCE CARTER AND ROCHELLE MARIA CARTER Second Defendants

Hearing: 24 May 2012

Appearances: Mr F Collins for Plaintiff

No appearance for Defendants

Judgment: 24 May 2012

_{ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE}

Counsel:

Gibson Sheat, Private Bag 31095, Lower Hutt – [e-mail]

Mr and Mrs Carter, 31 Fifteenth Avenue, Tauranga – by email: [e-mail]

ANZ NATIONAL BANK LIMITED V CARTER & ors HC TAU CIV-2011-470-1089 [24 May 2012]

[1] This proceeding was adjourned to today on the understanding that the summary judgment application which the bank had brought against the Carters would proceed on a defended basis. The Carters apparently hoped to be able to instruct counsel to represent them at today’s hearing. Neither the Carters nor counsel have appeared.

[2] Mr Collins for the plaintiff advises me that he was informed by the Carters via the bank that they would not be appearing today.

[3] The plaintiff now seeks summary judgment. In brief, the argument raised for Mr and Mrs Carter was that they had made a proposal to the bank in May 2009 which, had it been accepted, they say would have resulted in all liabilities to the bank being cleared. The proposal involved the sale of secured property which they owned at Papamoa partly for cash and partly by the transfer to the bankof two Auckland apartments which the defendants said were valued at $750,000. Had the latter point been a correct description of the value of the apartments, the total consideration forthcoming for the sale would have been approximately $1.95 million. The bank accepts that at that time that would have been sufficient to clear the liabilities owed by the defendants to the plaintiff. The plaintiff however declined to accept the part of the arrangement under which it would be required to take the apartments in partial satisfaction of the debt.

[4] The evidence shows that the bank’s concern was that there were no current valuations of the Auckland apartments. Mr and Mrs Carter did not provide such a valuation. They said they had attempted to but had encountered difficulties which prevented them from obtaining a valuation of the apartments. They did however have in their possession a valuation dating back to May 2008 of the apartments which had been carried out by a firm called Colliers. This valuation was the figure of $750,000. However the bank’s position was that while it was not necessarily opposed to accepting the transfer of property in satisfaction of all or part of the debts that the defendants owed to it, it could not be satisfied as to what the realisable market value of the apartments was and accordingly they declined the offer.

[5] Since that time, the Carter’s have not been able to come up with any

alternative proposal which would satisfy their liability to the bank.

[6] I have today been provided with a statement originating from the ANZ National Bank Limited which says that the Carters currently owe $872,060.82. That statement is not in sworn form. I regard it, however as likely to be correct. I will say something more about that communication from the bank further on in this judgment.

[7] As it turned out the bank did not exercise a power of sale over the Papamoa property. The Carters’ themselves sold that property and no issues under s 176 of the Property Law Act 2007 arise. So if the Carters were to have any defence against the bank it would have to be of a kind that depended upon them being able to bring a counter-claim against the bank for damages for breach of a duty that the bank owed to them. Just what that duty might have been has not been identified. It must, if there was any duty at all, amount to an assertion of unreasonable conduct on the part of the bank or a breach of its obligations under the Credit Contracts & Consumer Finance Act 2003. In the end it would depend upon the Court accepting that the bank had behaved unreasonably in declining to accept a transfer of the two Auckland apartments to it as part of the satisfaction of the Carters’ liability. Given the fact that the Carters were unable to provide a registered valuation which would have reassured the bank as to the value of what it was to receive, I cannot see any basis upon which the bank could be said to have acted unreasonably.

[8] Based upon the facts which the Carters’ raise in their affidavits in opposition to summary judgment, I am not able to accept that they have any arguable defence to the summary judgment application. In my judgment the plaintiff should now be entitled to have its application for summary judgment proceed. I enter judgment for the plaintiff in the sum of $872,060.82.

[9] The judgment is to lie in Court until not later than 14 June 2012. This is to give the Carters an opportunity to take further measures to attempt to reach a compromise with the plaintiff. As well, the judgment is to lie in Court until the figures which were set out in the statement provided by Mr John Mitchell the recoveries manager at ANZ National Bank Limited (that is the statement that the Carters’ owe $872,060.82), has been verified on oath. There will be no requirement on the bank to serve the affidavit on the defendants.

[10] The plaintiff will have costs on a 2B basis together with disbursements to be fixed by the Registrar.

J.P. Doogue

Associate Judge