Ordered to
pay $1.9 million shortfall on a mortgagee sale of her failed Auckland property
development, Jian Tan was also ordered to pay $111,900 as an occupation rent
for the period taken to evict her from the Massey property. The High Court ruled out her negligence claim
against a real estate agent marketing the property; in a mortgagee sale, real
estate agents are acting on behalf of the unpaid creditor, not the defaulting
owner.
Ms Tan’s
five unit development on Massey’s Don Buck Road collapsed into a welter of
claims and counter claims when her company Golden Touch Investment and Trade Co
Ltd defaulted in late 2023 on a $3.8 million loan.
The loan
was advanced by Jianzhong Zhu. Ms Tan
guaranteed repayment.
The High
Court was told Ms Zhu’s loan was used to refinance existing lending at a time
when the project was already in difficulty.
By the time repayment of Ms Zhu’s loan was due, the development was still
not complete. No code compliance
certificate had been issued.
Following a
later High Court hearing, Associate Judge Cogswell said Ms Tan did little more
than raise vague and unsubstantiated allegations about the mortgagee sale
process.
At heart of
Ms Tan’s allegations was a complaint that Ms Zhu was party to a fraud, intended
to get control of her Don Buck property at a cheap price.
Ms Tan
alleged purchaser at the mortgagee sale, Cypress Investment Holding Ltd, was a
front for Ms Zhu. She claimed Cypress
Investment was controlled by Ms Zhu’s spouse.
She had private investigators attempt to track down who was running
Cypress; to no avail.
Legal costs
mounted with multiple unsuccessful attempts by Ms Tan to block any mortgagee
sale.
Ms Tan
claimed Ms Zhu wrongly dismissed attempts to refinance. The deal she offered would have seen
part-payment to Ms Zhu, with her then first ranking mortgage reduced to a
second-ranking security for the unpaid balance.
Ms Zhu was
not obliged to enter into arrangements that increased the risk of further
losses, Judge Cogswell said. Golden
Touch was in breach of its loan; Ms Zhu was entitled to enforce her mortgage,
he said.
Ms Tan
claimed Ms Zhu did not properly advertise the property when selling. She also claimed damages for negligence from
Harcourts Three Kings.
Photographs
included in an information pack provided to potential bidders did not show the current
state of the property to best advantage, she said. They were taken at an earlier point in
construction.
The court
was told Ms Tan had refused access during the marketing period. There was no opportunity to get better
photographs.
Even if inadequate
photographs were a defect in marketing the property, it was a defect caused by
Ms Tan, Judge Cogswell said. In any
event, they correctly illustrated that the project was incomplete at time of
sale, he said.
After
purchasing at mortgagee sale, Cypress discovered the property was occupied and
tenanted.
It was
awarded mesne profits totalling $111,900 against both Golden Touch and
Ms Tan for the seven month period from date of the mortgagee sale to the date
of the court hearing. Akin to the law of
trespass, these damages are compensation for the wrongful occupation of
property owned by someone else.
Both Golden
Touch and Ms Tan were ordered to surrender possession.
Ms Tan’s claims
against Harcourts Three Kings were dismissed.
Real estate
agents acting on a mortgagee sale owe legal duties to their client, the secured
creditor enforcing its security. A
defaulting debtor is not the client.
Any claims
for losses arising from poor marketing of a property in a mortgagee sale are
made against the secured creditor forcing the sale, not the real estate company
acting as agent for the creditor.
Golden
Touch Investment and Trade Company Ltd v. Zhu – High Court (5.06.25)
25.138