Helmich and Taylor v Thorp and Strathdee - [1997] 3 NZLR 86

Property law — Mortgage — Agreement to give mortgage of land to secure obligations under agreement for sale and purchase of shares — Mortgage containing a fictional recital of lending on receipt of money — Mortgagor defaulting in settlement of agreement for sale and purchase of shares — Mortgagee issuing notice under s 92 of Property Law Act 1952 — Mortgagee arranging to sell mortgaged property — Mortgagor applying for interim injunction to prevent mortgagee exercising power of sale — Whether serious question to be tried — Whether fictional recital invalidated mortgage — Property Law Act 1952, s 92.

Property law — Vendor and purchaser — Agreement for sale and purchase of shares — Obligations under agreement secured by mortgage — Purchaser defaulting on settlement of share purchase — Mortgagee seeking to exercise power of sale — Whether fictional recital invalidated mortgage.

Equity — Estoppel by convention — Mortgage containing fictional representation to advance in receipt of money when given to secure obligation under agreement for sale and purchase of shares — Whether mortgagor entitled to resile from factual assumptions assumed for purpose of mortgage.