Bank of New Zealand v Van Heerden

[2017] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002246 [2017] NZHC 2334

IN THE MATTER	of an application for summary judgment
BETWEEN	BANK OF NEW ZEALAND Applicant/Plaintiff
AND	JENNIFER VAN HEERDEN Respondent/Defendant

Hearing:	26 September 2017
Appearances:	P J Anderson for Applicant No appearance by Respondent
Judgment:	26 September 2017

ORAL JUDGMENT OF VENNING J

Solicitors:           Sanderson Weir Limited, Auckland

Copy to:            Respondent

BANK OF NEW ZEALAND v VAN HEERDEN [2017] NZHC 2334 [26 September 2017]

[1]      The applicant seeks summary judgment against the respondent.  There is no appearance of or for the respondent this morning.  This is the second application for summary judgment against the respondent.

[2]      There is a background to the procedural history of this case.  The Bank’s first

application for summary judgment was declined in a judgment of this Court dated 9

March 2017.  The initial application for summary judgment was in part based on a guarantee that the Bank was unable to put into evidence because it was held in the Bank’s offices which were inaccessible following the Kaikoura earthquakes at the end of 2016.  Access to the building in which the guarantee was held was subsequently granted and the guarantee put into evidence. In a decision on 2 August 2017 Edwards J granted leave to the Bank to bring this second application for summary judgment.

[3]      The second application has been served on the respondent.  The respondent has taken no steps in opposition to this application and is also in default of the directions made at a case management conference when the matter was proceeding to a substantive fixture.  As noted, there is no appearance of or for the respondent or defendant today.

[4]      The other aspect of concern to Associate Judge Bell in declining to grant summary judgment on the Bank’s initial application was stated by the Judge to be his doubt as to the defendant’s liability for the $20,000 odd to repay her husband’s visa account and the balance indebtedness required to pay the indebtedness of van Heerden Rentals Ltd.   He noted it was arguable she was assuming for the first time the responsibility for an indebtedness to which she had not previously been exposed in relation to the van Heerden Rentals Ltd in particular.

[5]      Both  of  those  issues  have  been  addressed  by  the  Bank  in  this  renewed application for summary judgment.   The Bank has abandoned the application for judgment insofar as it relates to the guarantee of the respondent’s husband’s visa account. In relation to the second aspect of the claim, the claim is based on a new loan agreement but the loan agreement was supported by an existing guarantee.

[6]      Having reviewed the file and the further evidence now before the Court in support of this application for summary judgment I am satisfied that there is no reasonably arguable defence to the Bank’s application for summary judgment.

[7]      There will accordingly be judgment entered in favour of the Bank against the defendant for the sum of $190,404.69. Interest on that sum at the default rate of 8.34% per annum from 17 May 2016 to the date of judgment which totals $21,666.07.

[8]      The Bank is also to have costs of $8,920.00 together with disbursements of

$1,400.00.

[9]      Finally, the allocated trial date on the substantive matter of 26, 27 March 2018 is vacated.

Venning J