Elvidge v ASB Bank Ltd

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-441-811 [2015] NZHC 44

BETWEEN

ROBERT ELVIDGE and JOHN

RICHARD TOWNSHEND GIFFORD as trustees of CREDIT UNION INSURANCE LIMITED

Plaintiffs

AND

ASB BANK LIMITED Defendant

Hearing:	10-12 February 2014
Appearances:	S E McCabe for Plaintiffs M J Tingey and N F D Moffatt for Defendant
Judgment:	2 February 2015

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 2 February 2015 at 12:00md

Pursuant to Rule 11.5 of the High Court Rules

………………………………………….

Registrar/Deputy Registrar

Solicitors:

Sainsbury Logan & Williams (M E J MacFarlane) Napier, for Plaintiffs
Bell Gully (M J Tingey and N F D Moffatt) Auckland, for Defendant

Barrister:

S E McCabe, Auckland, for Plaintiffs

ELVIDGE and GIFFORD as trustees of CREDIT UNION INSURANCE LIMITED v ASB BANK LIMITED [2015] NZHC 44 [2 February 2015]

TABLE OF CONTENTS

Paragraph

Introduction   [1] What the case is about   [5] Earlier proceedings  [20] What has happened so far in this proceeding  [26] The bank’s makeweight arguments  [33] Sued for the third time  [35]

Gaps in the plaintiffs’ case  [36] Pioneer’s deed of settlement  [39] Release argument  [41]

The bank’s summary judgment application  [44] The bank’s partial strike-out application  [61] Procedural matters  [64]

Merits  [75] Interpretation of the new form  [84] Is the defence otherwise defeasible?  [91]

The bank’s application to dismiss for want of prosecution         [97] Have the plaintiffs delayed during the proceeding?  [100] Was their delay inordinate?  [101] If there was inordinate delay, was it inexcusable?  [113] If the delay was inordinate, has it seriously

prejudiced the bank?  [120]

Can justice be done despite the delay?  [127] The plaintiffs’ application under r 7.51  [130] Rule 7.51 – principles  [131] Associate Judge Osborne’s decision  [137]

The excluded information  [144] The significance of this information  [150] Is the new information irrelevant?  [152] How does Judge Osborne’s decision stand in the light

of the new information?  [158] Did the bank act improperly in excluding the evidence?      [159] Clues left by the bank  [169] The bank’s evidence objection  [173] What consequential orders?  [185]

The bank’s application for permanent stay  [192] Outcome    [206] Pleadings  [207] Conference  [209]

Costs  [210] Extension of time for review  [211] Orders  [212]

Introduction

[1]      It is nearly a year since I heard these applications.  I have taken much longer to give my decision than I would have liked.  I apologise to the parties for the delay. It must have caused them inconvenience and concern.

[2]      Each  side  made  interlocutory  applications.    The  defendant,  ASB  Bank, applied first. It seeks:

[a]      summary judgment  under r 12.2  of the High  Court  Rules  on the ground that it has a sound defence against all causes of action based on its verification clause;

[b]      strike-out under r 15.1 of the plaintiffs’ cause of action for breach of mandate on the ground that it has a sound defence based on its contractual terms for operating its accounts;

[c]       dismissal for want of prosecution under r 15.2; and

[d]      permanent stay of…