Application for summary judgment — mortgage default — power of sale — mortgagee's duty of care — breach of equitable duty to act in good faith — Property Law Act 2007, ss 119, 120, 156-167 & 176 — District Court Rules 2014, r 12.2 — Krukziener v Hanover Finance Ltd [2008] NZCA 187 — Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd [2001] 4 NZ ConvC 193, 480 (HC) — Public Trust v Ottow (2009) 10 NZCPR 879 — Apple Fields Ltd v Damesh Holdings Ltd [2001] 2 NZLR 586 (CA) — Coltart v Lepionka and Co Investments Limited [2016] NZCA 102; [2016] 3 NZLR 36. The plaintiff sought summary judgment against the first defendant for a debt of $43,067.69 plus costs of $6,219.89. The plaintiff was a company established and directed by the second defendant's father; the two defendants had formerly been in a relationship. The plaintiff had purchased the defendants' mortgage debt from the bank following the end of the defendant's relationship and amidst relationship property negotiations. The second plaintiff had stopped all payments toward the mortgage, putting the loan into default. Two days after obtaining the assignment of the mortgage, the plaintiff gave notice, under s 119 of the Property Law Act to the first defendant of the default, subsequently selling the property. The amount sought was the shortfall of the loan owed after the sale. The first defendant opposed summary judgment claiming there were arguable defenses to the claim . The issue for the court was whether the issues raised amounted to an arguable defence; whether the first defendant is liable for the outstanding amount and whether the plaintiff properly discharged its obligations in respect of the sale of the property both in law and in equity. The Judge declined to make an order for summary judgment as the first defendant had an arguable defence that the plaintiff acted in breach of its equitable duty both to act in good faith and to act for a proper purpose. It appeared as though the company had been created to defeat the first defendant's interests in the property as relationship property. It was also arguable the plaintiff had breached its duty to exercise reasonable care to obtain the best price reasonably possible for the property: it failed to appoint a real estate agent; carry out marketing or advertising; did not conduct an auction or reasonable sale process; and sold the property at a loss. Judgment Date: 23 December 2019.