The borrower argued that by obtaining a Herron Todd White valuation of $3.8 million and providing it to the borrowers with an offer to lend $2.6 million, the bank impliedly warranted the 2007 valuation and its methodology.
In considering this claim the judge noted that the borrowers had contracted to buy the the property for $3.8 million long before they received the Herron Todd White valuation. Indeed after other banks had refused finance CBRE valued the property at $1.6 million for the ANZ bank.
The judge held:
The valuation was for the bank’s exclusive use. Moreover even if the methodology was flawed the contract was unconditional before the respondents even knew what the HTW valuation was. They may have read too much into the bank’s willingness to lend but the risk was one they voluntarily and independently assumed and not sufficient to lay the blame at the feet of the bank.
The debt is proven, no ground of defence with any reasonable prospect of success exists and no contested facts need investigation at a trial. The application for summary judgment is granted.