ANZ Bank Limited v Thompson - [2013] NZHC 517

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-780 [2013] NZHC 517

BETWEEN ANZ BANK LIMITED Plaintiff

ANDCROYDON JERRY THOMPSON First Defendant

ANDDIANNE MARGARET THOMPSON Second Defendant

Hearing: 13 March 2013

Appearances: P Roy for Plaintiff
D W Grove for Defendants

Judgment: 13 March 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Minter Ellison Rudd Watts (Richard Gordon/Pearl Roy) P O Box 2793 Wellington, for Plaintiff
Email: pearl.roy@minterellison.co.nz

Foy & Halse (Graeme W Halse) P O Box 26 218 Epsom Auckland 1023, for Defendants
Email: graeme@foyhalse.co.nz

Copy for:
Daniel W Grove, P O Box 130 Auckland 1140, for Defendants
Email: danielgrove@45chancery.co.nz

ANZ BANK LIMITED V THOMPSON HC WHA CIV-2012-488-780 [13 March 2013]

[1] The ANZ Bank sues Mr and Mrs Thompson for $650,548.33 and interest on that sum at the rate of 28.15 per cent per annum from 8 November 2012 up to and after judgment until date of payment, plus costs on a solicitor-client basis. Its claim is for the shortfall after mortgagee’s sales. It applies for summary judgment. Mr and Mrs Thompson oppose.

Leave to amend notice of opposition

[2] The grounds of opposition have changed. At the outset, the Thompsons’ defences were: that the bank ought never to have extended credit to them in the first place – in effect, a form of lenders’ liability argument; and that the bank had not complied with s 176 of the Property Law Act 2007 in selling the properties over which the bank held a mortgage as security for credit extended to the Thompsons.

[3] More issues emerged. I raised a third issue in my minute of 11 March 2013 when I queried whether the bank was entitled to make demand for the entire debit balance on 29 November 2011, and whether the bank’s notice of 12 December 2011 complied with ss 119 and 120 of the Property Law Act 2007.

[4] Mr Grove was instructed late. He raised new issues – arguments under ss 122 and 118 of the Property Law Act. At the outset of the hearing he sought leave to file and serve an amended notice of opposition. The amended notice of opposition relied on all the grounds in the original notice of opposition but also added fresh grounds under ss 118, 119 and 122 of the Property Law Act.

[5] Ms Roy opposed because of the late notice and the absence of time given to address the new issues. She signalled that partly on the issue under s 119 – and certainly on the issue under s 118 – the bank would need time to adduce further evidence to meet these new defences.

[6] I granted leave to amend the notice of opposition. I am conscious that this proceeding is a matter of the utmost seriousness for Mr and Mrs Thompson. There

would be a potential miscarriage of justice if they were not able to present to the court all the defences that they wished to rely on – albeit they had raised them…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 517
Decision Date: 13 March 2013

CaseChat Overview and Summary

ANZ Bank Limited sought to recover $650,548.33 from Mr and Mrs Thompson, along with interest and costs, from the proceeds of a mortgagee sale of their properties. The bank applied for summary judgment, which the Thompsons opposed. The court had to determine whether the bank's demand for repayment and subsequent notice complied with the Property Law Act 2007, and if not, whether the Thompsons had a valid defence. The court found that the bank's demand and notice did not comply with the Act, as the bank had not identified a default or the action to remedy it, and the amount demanded exceeded the actual default. Consequently, the bank had not validly accelerated the debt, and the Thompsons had an arguable defence. The court dismissed the bank's application for summary judgment and ordered the Thompsons to file a statement of defence within 15 working days, excluding certain defences. The court also scheduled a telephone case management conference for further directions and reserved costs.

Orders