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This book is only available in PDF format
Author(s): Denis Sheard, Bruce Stewart KC
Published: 29 October, 2002
Pages: 356
   

The latter part of the 1980s was a particularly busy time for those lawyers who practised in the area of loan security enforcement. The hype of the 1980s culminating in the stock market crash of 1987 brought a rash of mortgagee sales and accompanying litigation.

The New Zealand Law Society’s response was the original mortgagee sales seminar, conducted in 1991 by Steven Dukeson and Bruce Stewart. The booklet from that seminar has proved an invaluable resource during the following decade. Now, it is timely to revisit and review the law in this area. While recent case law has served to clarify a number of issues this area of the law remains an area of complexity. Pitfalls and problems to trap the unwary abound. This is not an area of the law to be dealt with lightly.

We think it is important that, on a day-to-day basis, there be someone in your office who is well versed in the law as well as the day-to-day practicalities of security enforcement. If your mortgagee sale “expert” is not a litigator, there is a need to have a litigation lawyer readily available to assist in the process. If the matter becomes litigious invariably it will come on for a hearing in a hurry, with little time for careful and in-depth consideration of the issues.

In addition to being well versed in the law, we think it important to give full care and attention to the conduct of the sale on a day-to-day basis. If the matter is handled by a practitioner with a low regard for this area of law, or handled by a junior practitioner with inadequate supervision, the chances of error are increased. While defending challenges against allegations of defective process can be academically stimulating and legally interesting, such challenges are unwelcome to the lender, particularly where delay in realisation results in further loss and/or additional legal expense which may not be recoverable from the mortgagor.

It has not been possible to deal with every issue in this booklet. We are hopeful that the information it contains, however, will, as its predecessor did, provide you with at least a readily accessible and useful reference resource. We acknowledge Steven Dukeson for his contribution to this booklet by way of his labours for 1991 booklet. Thanks must also go to Jan Etwell and Angela Burgess of Buddle Findlay, Christchurch for their diligent research and assistance in the presentation of this booklet.

We have endeavoured to state the law as we understand it as at 31 August 2002.

 
Bruce Stewart QC
and
Denis Sheard



 

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