Hart gets further stay on house sale

Last updated 15:36 04/12/2012

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Former top criminal lawyer Barry Hart has managed to temporarily halt the mortgagee sale of his house, despite assuring a judge he would take no further such action.

Hart was struck off the roll of barristers and solicitors in September for professional misconduct, and also faces bankruptcy proceedings being brought by the ANZ bank.

Earlier this year he opposed the sale of eight rural properties north of Auckland to repay debts to the ANZ totalling over $30 million.

Seven of those properties were subsequently sold by the bank through mortgagee sales. Only the house Hart lives in is still unsold.

Hart argued that ANZ mishandled the sale of the properties and did not get the best price. He sought damages on the basis the bank had refused to give him the stated amount necessary to redeem the mortgage over the home he and his wife share.

ANZ counter-claimed for a summary judgment against Hart for the money owed, and for Hart to leave his home so it can be sold.

Associate Judge David Abbott found in October that ANZ had not mishandled the sale of the properties.

The sum required to satisfy the debt over Hart's home was "the total indebtedness", and Hart did not tender that sum.

There was also no evidence of a residential tenancy agreement or a lease over the property as Hart had argued, the associate judge said.

ANZ was therefore entitled to vacant possession of Hart's house, to be provided within 10 days of the order.
However, Hart went back to court seeking a stay of Associate Judge Abbott's ruling.

In his decision on the latest application, Justice Graham Lang said it was the third time Hart had tried to stop the bank from selling the properties.

After the second attempt in July, he gave an undertaking to the court that he would not try it again.

"The present application therefore directly contravenes the spirit of that undertaking," Justice Lang said.

Hart's position was worse than it had been in July, as the ANZ now had the summary judgment against him.

"They [Hart and his companies] can no longer claim to have a good arguable case against the bank," the judge said.

But ANZ said it wanted a limited stay to be granted, so that Hart could seek a stay from the Court of Appeal next week.

Justice Lang therefore granted the stay until December 14. However, he would let Associate Judge Abbott decide whether the bankruptcy proceedings should be halted when the matter came before him on December 13, he said.

It will be a busy week in court for Hart, who is also due to appeal against the decision to strike him off the professional register on Monday.

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- BusinessDay.co.nz

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