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Stephen Russell / Things
Kumutoto Bay is a 10-minute boat ride from Picton, via Tōtaranui / Queen Charlotte Sound in Marlborough.
A developer who tried to stop the mortgagee from the bach he bought along with his property in Marlborough Sounds was ordered to pay nearly $ 80,000 to the finance company he used.
Simon Lydall Savill, whose family trust owned a beachside bach in Kumutoto Bay near Picton, borrowed $ 850,000 from finance company AMFL in December 2018 to buy the bach next door. He had to return it in five months.
But Savill, of Christchurch, did not pay the loan on time. It claimed that AMFL’s notice to pay was void and refused to come to the door to accept the second notice delivered in March, saying it was beginning the closing early. The documents were then emailed to him.
The property was listed for mortgagee auction on April 3, but Savill requested an urgent order from the Superior Court to stop the sale, claiming he never received proper notice, and selling the property during closing would violate the property’s duty of care finance company to get the best possible price.
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Judge Rachel Dunningham agreed that the sale would be disadvantaged by not having visitors, and granted the court order at 5:30 p.m. on March 25.
When AMFL returned the case to Christchurch Superior Court on August 13, Judge Dunningham lifted the injunction so that the mortgagee’s sale could go ahead.
AMFL returned the case to Superior Court in November, arguing that it should not have to pay Savill’s costs for the court order, as the decision to lift it showed it was not justified.
Scott Hammond / Stuff
The “water resources” of the bach included a mooring in the bay, as well as a boathouse and pier. (File photo)
In fact, Savill should have to pay AMFL’s costs, including this latest court hearing, AMFL said. The company’s loan agreement stated that it was entitled to recover the costs of enforcing the contract.
AMFL’s legal bills totaled $ 80,033.02, plus disbursements of $ 500.
But Savill argued that AMFL should pay its costs, as the court order was successful. Savill’s costs totaled $ 3107, plus outlays of $ 476.
He also questioned the amount of costs that AMFL was seeking, saying that a daily recovery rate appropriate to two-thirds of actual costs would be around $ 12,396.93.
Savill also claimed $ 15,000 of the AMFL costs it paid for the assistance of a second attorney was “double dip.”
Judge Dunningham said she accepted that the additional assistance was necessary and the costs reasonable, in her Superior Court decision issued Nov. 19.
It said the court order in favor of Savill was necessary to prevent the bach from being sold during the closing, and awarded costs to Savill of $ 3,583, which would be offset by costs awarded to AMFL.
Including partial settlement costs of $ 1,300, Judge Dunningham ordered Savill to pay costs of $ 79,250.02 to AMFL.
