Burke v Advanced Securities Ltd - [2008] NZCA 93

IN THE COURT OF APPEAL OF NEW ZEALAND

CA696/07 [2008] NZCA 93

BETWEEN
JULIAN PAUL BURKE AND GILLIAN

ELIZABETH BURKE

Appellants

AND

ADVANCED SECURITIES LIMITED

Respondent

Hearing:         12 March 2008
Court:             Chambers, John Hansen and Heath JJ Counsel:  A A Liddell for Appellants
T M Braun and K I Bond for Respondent Judgment:   18 April 2008 at 2.30 pm
JUDGMENT OF THE COURT

AThe appellants are granted leave to adduce the exhibits to their affidavit of 12 March 2008, but not the text of that affidavit.

BThe appeal is allowed to the extent that the words “and balance Lot 1 deposited plan 360598 (246472) with additional land amalgamated” are deleted from the sealed order for possession.

CThe respondent is granted leave to apply to the High Court for an order varying the possession order to incorporate such defined area of Lot 1 as it can establish it has a right to re-enter under its mortgage.

DIn all other respects, the appeal is dismissed.

BURKE V ADVANCED SECURITIES LTD CA CA696/07 [18 April 2008]

E Costs are reserved, with leave to apply also reserved. The security for costs paid by the appellants must not be paid out except pursuant to the written agreement of the parties or by order of this Court.

REASONS OF THE COURT

(Given by Heath J)

The appeal

[1] Mr and Mrs Burke appeal against the entry of summary judgment against them in the High Court at Tauranga. Their appeal was filed out of time but an extension of time was granted on 7 December 2007: [2007] NZCA 562.

[2] Mr and Mrs Burke challenge a money judgment and an order for possession of land in favour of Advanced Securities Ltd (ASL). Those orders resulted from two judgments given by the Associate Judge Doogue, in the High Court at Tauranga, on 18 July and 15 August 2007 respectively.

[3] Mr and Mrs Burke appeal against the money judgment on the grounds that ASL failed to make initial disclosure under the Credit Contracts and Consumer Finance Act 2003 (the Act) and, subsequently, was guilty of “oppressive” conduct in terms of that Act. They contend also that the possession order ought not to have been made.

Leave to adduce further evidence

[4] Leading up to the appeal hearing, Mr and Mrs Burke were self-represented. Two days before the hearing, they instructed Mr Liddell. He appeared before us to make submissions on the disclosure point. We are grateful to Mr Liddell for his assistance at short notice.

[5] Mr Liddell sought leave to adduce further evidence on appeal, in the form of an affidavit sworn by Mr Burke on the day of the hearing and various exhibits. That application was opposed by Mr Braun, for ASL, insofar it related to the narrative of the affidavit. Mr Braun consented to the exhibits being put before the Court.

[6] We are satisfied Mr and Mrs Burke had adequate opportunity to provide affidavit evidence in the High Court or to seek leave…

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.

Continue reading Burke v Advanced Securities Ltd

Details

AGLC: Burke v Advanced Securities Ltd [2008] NZCA 93
Case: [2008] NZCA 93
Decision Date: 18 April 2008

CaseChat Overview and Summary

The appeal was brought by Mr and Mrs Burke against the entry of summary judgment against them in the High Court at Tauranga. Their appeal was filed out of time but an extension of time was granted. Mr and Mrs Burke challenged a money judgment and an order for possession of land in favour of Advanced Securities Ltd (ASL). The appeal against the money judgment was based on the grounds that ASL failed to make initial disclosure under the Credit Contracts and Consumer Finance Act 2003 (the Act) and, subsequently, was guilty of “oppressive” conduct in terms of that Act. They also contended that the possession order ought not to have been made. The Court found that the initial disclosure provisions of the Act did not apply to prevent ASL from obtaining judgment for the outstanding loan. The Court also found that an error was made in relation to the additional land when the possession order was made. The Court allowed the appeal to the limited extent of removing the reference to Lot 1 from the possession order and reserved leave to ASL to apply to the High Court to incorporate such part of Lot 1 over which it can assert a basis to exercise its rights to re-enter as mortgagee. In all other respects, the appeal was dismissed.

Orders