09 November 2015

Bank/Client: Cantara Ltd v. BNZ

Ensuring a business proposition is viable before advancing a bank loan does not make the bank liable as a business advisor, the High Court ruled in dismissing a Marton cropping farm’s claim of $1.2 million for losses suffered after a 2008 property purchase.  This follows allegations that banks engaged in aggressive product promotion to farmers in Northland and the Manawatu when competing for market share.
The Whale family has substantial farming and rural contracting interests in and around the Manawatu.  Holding $700,000 in cash after selling off some land, they were looking to buy elsewhere.  The High Court was told of a June 2008 meeting between the Whales, their lawyer, their accountant and a Mr Ellis who was the relationship manager overseeing their business account with the Bank of New Zealand.  Mr Ellis undertook to prepare a “discussion document” to assist in any new land purchase.  A week later, he circulated a document stated as giving “an indication of the Bank’s requirements if [the Whales] sought to purchase more farmland.”  The document concentrated on a block of land available for sale near Marton.  It “assumed” a purchase price of $4.5 million, as an “indicative assessment” of the land selling at $10,000 per acre.  The Whales were to subsequently buy at $4.55 million and sued the BNZ after suffering losses every year it cropped the land for barley and wheat.  Just on a year after purchase, the land was valued at $3.7 million.  The Whales argued that they had paid too much and that they had relied on Mr Ellis and the Bank’s specialised rural-sector knowledge to determine the price.  Before purchase, Mr Ellis told the Whales there was no need to get a valuation of the land, but he told the court this advice was only in the context of determining whether the bank had sufficient margin as security for a loan.  The Whales further argued that when the Bank sent them its analysis of their income, cashflow and borrowings for the then current year it was assisting them in deciding whether to purchase.  The Bank denied this was the reason.  It said these were internal Bank documents assessing the creditworthiness of the borrower.  It said it was asking the Whales to advise if there were any factual errors in the assumptions used.  Some of the data was changed following the Whales’ response.  The Whales complained the Bank had a conflict of interest, alleging it was keen to find a buyer for the Marton farmland which had been on the market for some time with the Bank having a mortgage over the land.
Farmer advocate, Ms Janette Walker, told the court she had assisted farmers facing pressure from banks and threats of receivership where bank staff seeking to reach certain business targets to earn a bonus had manipulated customer budgets to get loan proposals through banks’ credit departments.  The Whales alleged their budgetted analysis of annual crop yields for barley and wheat of 4.9-5.5 tons per hectare was increased unilaterally by the bank to 6.0-6.5 tons per hectare, making the business proposition more favourable.
Associate Judge Smith ruled there was no contractual obligation on the bank to provide its credit assessment to the borrower.  The exchange of information between the Bank and the Whales was to assess whether any loan should be made.  There was no evidence of any agreement that the Bank was to act as a business advisor.  He further ruled the Bank’s relationship had been that of banker/client only.  The Bank did not “cross the line” to become a business advisor.  There was no obligation on the Bank to advise the Whales on the business merit of their borrowing.  The Whales had significant experience in farm ownership and rural contracting businesses.       
Cantara Ltd v. BNZ – High Court (9.11.15)

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