01 July 2016

Mortgage: Westpac v. Tuscany Properties

Barry Brill controlled Tuscany Properties was ordered to pay $585,000 after defaulting on a Westpac loan.
The High Court was told Mr Brill purchased in 1997 a number of properties at Rifle Range Road, Taupo, some as investment rentals, others operated as a motel.  Finance was provided by both Westpac and his family trust: the BE Brill Trust.  Problems arose in July 2013 following a missed Westpac interest payment.  The bank advised its $1.01 million term loan would not be rolled over on maturity in three months unless Mr Brill guaranteed any new advance, provided further security and there was evidence his company could meet future interest payments.  Mr Brill did not respond.  After Westpac threatened a mortgagee sale, Mr Brill made a counter proposal leading to a Westpac meeting in January 2014.  The outcome of this meeting was subject to conflicting evidence in the High Court.  Mr Brill said Westpac had agreed to put any mortgagee sale on hold while his proposal was considered.  Westpac said it made clear that any discussions did not prejudice its rights to sell and in any event the offered proposal was not acceptable.  It envisaged Westpac capitalising interest on any new advance for the first two years, charging a below market interest rate, increasing the loan by $30,000 with no further security and Mr Brill not providing any personal guarantee.  Compounding problems for Mr Brill was the fact Westpac staff at the January 2014 meeting left the bank shortly after and staff who took over the file had no knowledge of his counter proposal.
Justice Venning ruled there was no agreement Westpac would delay any mortgagee sale.  Westpac staff made it clear that any discussion of refinancing proposals did not prejudice their rights.  Westpac was justified in rejecting Mr Brill’s counter proposal, he said.
Westpac sold the properties by tender for $500,000.  Mr Brill said the Bank failed to get the best price reasonably obtainable.  It had failed to offer the properties singly where individual owners might be interested and failed to promote the properties nationally and internationally.  This claim failed.  A valuation prior to sale gave a forced sale valuation at $680,000 plus GST.  The price achieved at sale was $105,000 short of this valuation.  Justice Venning ruled Mr Brill had failed to establish any deficiency in the sale process.  Pre-sale valuations lose their significance when the property sold has been properly advertised, Justice Venning said.     
Westpac v. Tuscany Properties – High Court (1.07.16)

16.102