Burke v Advanced Securities Ltd

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.