Success in Complex Mortgage Recovery Case

Holmes v Senior TRUST

[2023] NZHC 368,  [2023] NZHC 3108, [2023] NZHC 2862, [2024] NZCA 369,

Represented by Murray Tingey

Outcome: In this series of judgments,  Murray Tingey represented the lenders, Senior Trust Limited, in relation to a loan to developers secured over a 1.43 hectare development block of land in Wanaka. This involved eight contested hearings,  including in the Court of Appeal, where Murray was successful in each case.

Case Summary

In this high-stakes insolvency case, a guarantor sought to prevent a mortgagee sale of a property on the eve of Christmas.  Murray successfully argued that the injunction should not be granted.  The property was then sold by mortgagee sale.  He then sought summary judgment against each of the guarantors for the shortfall.  He was successful and obtained judgment for $3.4 million, which he maintained on appeal to the Court of Appeal.  He then vigorously pursued enforcement action and ultimately matters were settled by agreement.

Legal Challenges

In defence to the claim, a guarantor maintained a factual position which was not correct in affidavits.   Without prejudice communications between the parties undermined the guarantor’s position but usually would be inadmissible. Murray relied on a little-used exception to without prejudice privilege to allow the evidence to be considered by the court.  This evidence was crucial in obtaining summary judgement and preventing the matter having to go to a full trial.

Strategic Approach

Murray Tingey took an aggressive and effective approach in relation to the claim utilising his thirty years of experience in the area.  He opposed all attempts to delay and ensured matters were determined as quickly as possible through court.   Once judgment was obtained,  he guided Senior Trust in taking the most effective enforcement action including through bankruptcy proceedings and examining the guarantor in the High Court  as to his assets.

ENDORSEMENT

Murray was diligent in acting on our behalf and kept us fully informed as to progress .He proved accurate in his predictions of a favourable outcome .We were pleased to have him acting in protecting our interests in this complicated and contentious issue.

John Jackson, Director , Senior Trust Limited

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Related Cases

Murray has also acted and appeared as senior counsel in the following mortgage cases:

  • Remarkables Hotel Ltd v Pearlfisher Trustee Ltd [2020] NZHC 3090 - Acting  for debtor/ mortgagee in successfully obtaining an interim injunction to prevent a mortgagee sale, which rarely is successful.

  • Marac Finance Ltd v Greer [2012] 2 NZLR 497 -Acting for Marac Finance Limited  in relation to priority of mortgage

  • Waller v Davies [2005] 3 NZLR 81, [2007] 2 NZLR 497 , [2007] NZSC 43 - Acting for Statutory Managers in High Court , Court of Appeal and Supreme Court  seeking to invalidate  mortgages based in fraud

Related Publications

  • https://www.nzherald.co.nz/business/companies/aged-care/irreconcilable-breakdown-sparked-wanaka-retirement-village-developers-liquidation/OFOE2QKQX5ENLIMTWPWSEB73DM