ANZ Bank NZ Limited v Jiang

[2017] NZHC 634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-956 [2017] NZHC 634

UNDER	the Trans-Tasman Proceedings Act 2010
BETWEEN	ANZ BANK NZ LIMITED Plaintiff
AND	LI YAN JIANG Defendant

Hearing:	4 April 2017
Appearances:	S Gunawardana for the plaintiff No appearance for the defendant
Judgment:	4 April 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      The plaintiff (the Bank) applies for summary judgment against the defendant. The defendant has taken no step in the proceeding, apart from sending some emails to the Registrar of the court to which I will shortly refer.

[2]      The circumstances of the claim are a little unusual, in that the claim is not a typical claim by a bank seeking to recover monies lent to a customer.  In this case, the Bank says that unauthorised funds were deposited into the defendant’s savings account as a result of an unlawful act or acts by an unknown third party.  The Bank alleges that the defendant had no entitlement to these funds, but on receipt, they were transferred from the defendant’s account to overseas accounts.

[3]      The money belonged  to  the Bank,  and  on  16  December 2015  the  Bank reversed  the  transfers  which  it  says  were  fraudulent.    The  result  was  that  the

defendant’s savings account was then overdrawn by $90,670.92.

ANZ BANK NZ LIMITED v JIANG [2017] NZHC 634 [4 April 2017]

[4]      The Bank made demand of the defendant for the return of the funds, but apart from a payment of $6,612.00 made to her savings account in part repayment, the amount removed from the account has not been repaid.

[5]      As at 24 May 2016, the amount owing to the Bank was $84,388.00.

[6]      The Bank now sues on the basis of monies had and received, and I am satisfied on the evidence that that is the appropriate cause of action.   The Bank’s statement of claim has been properly verified, and service was correctly effected on the defendant, in New South Wales, on 8 December 2016.

[7]      The case was first called before me on 7 March 2017.  While the defendant had not then filed a notice of opposition, she sent an email to the Registrar advising that she was in the process of applying for legal aid and would like to have the matter  adjourned  for  eight  weeks.    I  was  not  prepared  to  adjourn  the  Bank’s summary judgment application for that length of time, but did grant an adjournment to today’s date to allow time for the defendant to make any application she wished to make for an extension of time for filing a notice of opposition.  I directed that any such application was to be filed and served by 31 March 2017.

[8]      No notice of opposition has been filed.   However the defendant did make contact with the Registrar again shortly before the hearing, and on 30 March 2017 she advised the Registrar by email that she had just emailed the notice of opposition to the court, with a copy to the Bank’s solicitor.  No notice of opposition has been received by the court, and Ms Gunawardana tells me that the Bank’s solicitors have not received any notice of opposition either.

[9]      The final communication from the defendant was in the form of an email to the  Registrar  dated  3  April  2017,  in  which  the  defendant  sought  a  further adjournment to enable “Mr Long” to “settle the payment in mid-May”.

[10]     In the circumstances I am satisfied that the defendant has no defence to the Bank’s claim, and the Bank is entitled to summary judgment.   I enter summary judgment for the Bank as follows:

(a)       in the sum of $84,388.00 as claimed in the statement of claim.

(b)interest  and  account  fees  of  $42,476.64  in  accordance  with  the affidavit of Ms Carolyn Chrisp sworn on 3 April 2017.

(c)       costs and disbursements as set at para 1(c) of the memorandum of counsel for the Bank dated 4 April 2017.

Associate Judge Smith

Solicitors:

Gibson Sheat, Wellington for the plaintiff