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IN THE COURT OF APPEAL OF NEW ZEALAND
CA627/2009 [2010] NZCA 174
BETWEENBRUCE LEONARD BARTLE AND DOROTHY JUDITH BARTLE First Appellants
ANDBARTLE PROPERTIES LIMITED Second Appellant
ANDGE CUSTODIANS LIMITED First Respondent
ANDTASMAN MORTGAGES LIMITED Second Respondent
ANDJONATHAN MATHIAS Third Respondent
Hearing:11 and 12 November 2009
Court:William Young P, Hammond and Arnold JJ
Counsel:J G Miles QC, P J Dale and D W Grove for Appellants R B Stewart QC, B J Upton and M V Robinson for First Respondent No appearance for Second and Third Respondents
Judgment:6 May 2010 at 2.15 pm
JUDGMENT OF THE COURT
A The appeal is allowed.
BWe declare that the loan agreements at issue in this case are oppressive within the meaning of the Credit Contracts and Consumer Finance Act 2003.
CWe remit the case to the High Court for consideration of the appropriate remedy.
DThe appellants will have costs in the High Court as fixed by that Court.
EIn this Court, the first respondent must pay the appellants costs for a complex appeal on a band A basis and usual disbursements. We certify for two counsel.
Hammond J [1] Arnold J [103]
William Young P [232]
HAMMOND J
Table of Contents
Para No Introduction [1] The general narrative [10] The tangled web of companies [27] Oppression The claim in this case [32] The evolution of the present oppression remedy [36] The legislative basis of the oppression remedy [40] Judicial consideration of the oppression remedy to date [43] The arguments in this case [59] Discussion: The relevant factors in this case [61]
1. The credit contract [62]
2. A murky and disjunctive transaction [73]
3. The type of lending [77]
4. Total failures of comprehension [81]
5. The relationship between TML and GE [84]
6. Incompetent legal advice [91] Conclusion [98]
Introduction
[1] The appellants, Mr and Mrs Bartle and their associated company Bartle Properties Limited, purchased an apartment in Auckland as part of a “Blue Chip” investment scheme. The investment failed. The Blue Chip group of companies are worthless.
[2] The Bartles sought to avoid the credit transaction which supported the purchase of the apartment – and the potential loss of their residential home, which was mortgaged to support that transaction – on the basis that it was unconscionable at common law or that it was oppressive and should be reopened under the provisions of Part 5 of the Credit Contracts and Consumer Finance Act 2003 (the CCCF Act).
[3] The appellants’ proceeding against the respondents in this respect was heard by Randerson J in the High Court in April and May 2009. In September 2009, his Honour delivered a judgment dismissing those claims.[1]
[4] The Bartles have appealed to this Court on a number of grounds with respect to those holdings. The…
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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AGLC
Bartle v GE Custodians Ltd [2010] NZCA 174
Case
[2010] NZCA 174
Decision Date
CaseChat Overview and Summary
The case of Bartle v GE Custodians Ltd was heard by the Court of Appeal of New Zealand. The appeal was brought by Bruce and Dorothy Bartle and their associated company, Bartle Properties Limited, against GE Custodians Limited and Tasman Mortgages Limited. The Bartles had purchased an apartment in Auckland as part of a "Blue Chip" investment scheme which had failed, leaving the Blue Chip group of companies worthless. The Bartles sought to avoid the credit transaction supporting the apartment purchase on the basis that it was unconscionable at common law or that it was oppressive and should be reopened under the Credit Contracts and Consumer Finance Act 2003 (CCCF Act). The appellants' proceeding against the respondents was heard by Randerson J in the High Court, who dismissed the claims. The Bartles have appealed to this Court on several grounds. The Court of Appeal found that the appeal was allowed, the loan agreements were oppressive within the meaning of the CCCF Act, and the case should be remitted to the High Court for consideration of the appropriate remedy. The Court also found that the knowledge and actions of Tasman Mortgages Limited should be attributed to GE Custodians Limited.