29 October 2012

Mortgagee sale: Hart v. ANZ


The forced sale of properties owned by high profile Auckland barrister Barry John Hart left him with a $20.5 million shortfall.  The High Court dismissed his claim that ANZ National sold the properties at an undervalue.
Mr Hart garnered considerable publicity in his campaign against ANZ Bank alleging the bank failed to act properly in its forced sale of substantial landholdings on Highway 16 in west Auckland.  At the time, Mr Hart owed ANZ in excess of $30 million with interest accruing at $200,000 a month.
The court was told ANZ took action after loan payments fell into arrears.  A “stand still” arrangement gave Mr Hart six months to find a buyer or buyers for the properties.  After that the Bank proceeded with mortgagee sales.
Mr Hart was highly critical of the Bank’s forced sale process, claiming the properties were sold at a gross undervalue.  Properties he claimed were worth in the region of $29 million were sold for $8 million.
Associate Judge Abbott said a mortgagee is required to take reasonable care in the sale process to obtain the best price reasonably obtainable at the time of the sale.  There is no obligation to postpone a sale in the hope of a better price later, or to break up assets and sell in a piecemeal fashion.  Specialist advice should be taken in selling assets with unique characteristics.  Descriptive advertising is required and must reach the largest possible number of potential purchasers.
He ruled that ANZ Bank had acted properly in conducting the sales.  It sought competitive tenders from three real estate agencies asking them to highlight their expertise in selling properties of the type in question and seeking their advice on the best marketing strategies.  The Bank undertook a $55,000 marketing programme spread over six weeks.  The court was told 116 people registered an interest.   Each was invited to tender for some or all of the properties on offer.
Mr Hart’s main criticism centred on the sale prices.
Evidence was given that ANZ Bank first obtained valuations from professional valuers Darroch.  They valued the three main farming blocks being sold at $14.3 million (market value) and $10.1 million (forced sale value).  They in fact sold for some $8 million.
Associate Judge Abbott said the prices obtained were not so widely different from the Darroch forced sale valuation to suggest the sale process was inadequate.  The advice ANZ received was that $8 million represented the best they could receive at the time.
The court was told forced sale prices commonly range at a discount of 26%-30% below market prices, but can reach discounts of up to 40%.  The discount in this case was 44%.
He dismissed Mr Hart’s claim that the properties were worth $29 million; a valuation obtained from valuers Colliers International in 2010.  This valuation was two years old and was based on an assumption that the farm blocks could be subdivided into residential lifestyle blocks. A subsequent application for a zoning change had been unsuccessful.
Hart v. ANZ National Bank – High Court (29.10.12)
12.040