Bruce James King v ASB Bank Limited

IN THE SUPREME COURT OF NEW ZEALAND

SC 45/2014
[2014] NZSC 97

BETWEEN	BRUCE JAMES KING Applicant
AND	ASB BANK LIMITED Respondent

Court:	Elias CJ, Glazebrook and Arnold JJ
Counsel:	Applicant in person P V Shackleton for Respondent
Judgment:	28 July 2014

JUDGMENT OF THE COURT

AThe application for a stay of the determination of the application for leave to appeal is dismissed.

B The application for leave to appeal is dismissed.

C The applicant must pay costs of $2,500 to the respondent.
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REASONS

The applicant, Mr King, borrowed money from the respondent, ASB Bank Ltd, against the security of a property he owned. The loans fell into arrears and ASB sought to realise its security. Having allowed Mr King time to attempt to sell the property himself, ASB sold the property by mortgagee sale.
Mr King then issued proceedings against ASB seeking to have the loan agreements reopened or to obtain other relief, on the basis that ASB breached the Credit Contracts and Consumer Finance Act 2003 and the Fair Trading Act 1986. As the proceeds of the sale were insufficient to meet Mr King’s full indebtedness, ASB issued a counterclaim seeking to recover the balance. ASB sought summary judgment both on its counterclaim and as a defendant in respect of Mr King’s claims against it. Katz J granted both applications.[1]
[1]King v ASB Bank Ltd [2013] NZHC 2914.
Mr King then filed an appeal in the Court of Appeal. He applied for a waiver of the requirement to pay security for costs. When the Registrar dismissed his application, Mr King sought a review of her decision by a single Judge of the Court of Appeal. Ellen France J dismissed his application and ordered him to pay security in the amount of $5,880 by 28 April 2014.[2] Mr King now seeks leave to appeal against that decision.
[2]King v ASB Bank Ltd [2014] NZCA 102.
In addition, Mr King has filed an application for a stay of the determination of his leave application. He did so because a friend has agreed to lend him sufficient funds to cover the security fixed by the Court of Appeal and he wishes to see whether the Court of Appeal will permit him to revive his appeal by paying security for costs after the date fixed by Ellen France J.
Whatever the outcome of Mr King’s further application to the Court of Appeal, we see no reason to delay dealing with his application for leave to appeal to this Court against Ellen France J’s decision. Accordingly, we dismiss his application for a stay of our determination.
We are not satisfied that it is necessary in the interests of justice that we hear and determine this appeal. As the principles concerning security for costs were recently addressed by this Court in Reekie v Attorney-General,[3] the proposed appeal does not raise any issue of general or public importance. Moreover, there is nothing in the material before us to indicate that there is any risk of a substantial miscarriage of justice.
[3]Reekie v Attorney-General [2014] NZSC 63.
Accordingly, the application for leave to appeal is dismissed. The applicant must pay the respondent costs of $2,500.

Solicitors:
Simpson Grierson, Auckland for Respondent

CaseChat Overview and Summary

The case involves Bruce James King, the applicant, and ASB Bank Limited, the respondent. Mr King had borrowed money from ASB Bank against the security of a property he owned. The loans fell into arrears, and ASB Bank sought to realise its security. After allowing Mr King time to sell the property himself, ASB Bank sold the property by mortgagee sale. Mr King initiated proceedings against ASB Bank, seeking to reopen the loan agreements or obtain other relief on the basis that ASB Bank breached the Credit Contracts and Consumer Finance Act 2003 and the Fair Trading Act 1986. Since the proceeds from the sale were insufficient to cover Mr King’s full indebtedness, ASB Bank issued a counterclaim seeking to recover the balance. ASB Bank sought summary judgment on its counterclaim and as a defendant in respect of Mr King's claims against it. Katz J granted both applications. Mr King filed an appeal in the Court of Appeal and sought a waiver of the requirement to pay security for costs. When the Registrar dismissed his application, Mr King sought a review of the decision by a single Judge of the Court of Appeal. Ellen France J dismissed Mr King's application and ordered him to pay security in the amount of $5,880 by 28 April 2014. Mr King now seeks leave to appeal against that decision. In addition, Mr King has filed an application for a stay of the determination of his leave application because a friend has agreed to lend him sufficient funds to cover the security fixed by the Court of Appeal and he wishes to see whether the Court of Appeal will permit him to revive his appeal by paying security for costs after the date fixed by Ellen France J.

The court considered whether it was necessary in the interests of justice to hear and determine the appeal. The court noted that the principles concerning security for costs had recently been addressed by the Supreme Court in Reekie v Attorney-General, and the proposed appeal did not raise any issue of general or public importance. The court also found that there was nothing in the material before them to indicate that there was any risk of a substantial miscarriage of justice. Accordingly, the application for leave to appeal was dismissed. The applicant must pay the respondent costs of $2,500.

In summary, the Supreme Court dismissed Mr King's application for a stay of the determination of his leave application and dismissed his application for leave to appeal against Ellen France J's decision. The court found that the appeal did not raise any issue of general or public importance and that there was no risk of a substantial miscarriage of justice. Mr King was ordered to pay the respondent costs of $2,500.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established