Fung v ANZ National Bank Limited - [2012] NZHC 1278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-007996 [2012] NZHC 1278

BETWEEN RONNY CHEE HENG FUNG Appellant

ANDANZ NATIONAL BANK LIMITED Respondent

Hearing: 15 May 2012
(Subsequent submissions received on 25 May 2012)

Appearances: R C H Fung (Self-represented Appellant) in Person
H X Lee for the Respondent

Judgment: 8 June 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 8 June 2012 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Shieff Angland P O Box 2180 Shortland Street Auckland 1140 (DX CP19036)
for the Respondent

Copy To: R C H Fung (Self-represented Appellant) P O Box 51578 Pakuranga
Auckland 2140

FUNG v ANZ NATIONAL BANK LIMITED HC AK CIV-2011-404-007996 [8 June 2012]

[1] The appellant, Ronny Chee Heng Fung, appeals against a decision of the District Court striking out his defence and counterclaim in proceedings that the respondent, the ANZ National Bank Limited (ANZ), has brought against him in debt. The appeal is opposed.

Background

[2] In November 2007, Mr Fung purchased an undeveloped section in Papakura (the property). On 5 December 2007, he entered into a loan agreement (the agreement) with the ANZ, and on 20 December 2007, in accordance with the agreement, the ANZ advanced him the sum of $204,000, secured by way of mortgage against the property. In January 2009, Mr Fung defaulted on the repayment that was then due under the agreement. In June 2009, the ANZ served a default notice, pursuant to s 119 of the Property Law Act 2007 (the Act). The notice expired on 24 July 2009 and the default continued. On 23 November 2009, the property was sold by public auction, pursuant to the ANZ’s power of sale, for the sum of $155,000. $139,696.44 was applied to clear Mr Fung’s indebtedness to the ANZ under the loan agreement. This left a shortfall of $94,946.78. On 15 October
2010, the ANZ commenced the proceedings to recover $99,915.66, including the amount of the shortfall and interest to date.

[3] Mr Fung accepts that he borrowed the principal sum, that he defaulted on his repayments, and that the amount of shortfall calculated is correct. However, his defence and counterclaim are that the ANZ caused him loss by changing its lending criteria from 80 per cent to 65 per cent of the secured asset and that the ANZ, via its agent, Mr Tony Goh (a mortgage broker), misled him into believing that the ANZ would grant him a construction loan.

[4] Mr Fung never applied for a construction loan, as he could not satisfy the ANZ’s more onerous lending criteria. He contends that Mr Goh told him it would be pointless to do so, given the change in lending criteria.

[5] In the District Court, Mr Fung made substantially the same argument on substantially the same facts as he had done previously in Westpac New Zealand Ltd v Fung DC Manukau CIV-2010-092-596, 28 March 2011. The District Court focused…

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 Fung v ANZ National Bank Limited

Details

AGLC: Fung v ANZ National Bank Limited [2012] NZHC 1278
Case: [2012] NZHC 1278
Decision Date: 8 June 2012

CaseChat Overview and Summary

Ronny Chee Heng Fung appeals against the decision of the District Court to strike out his defence and counterclaim in a debt action brought by ANZ National Bank Limited. The appeal is opposed. In November 2007, Mr Fung purchased an undeveloped section of land and took out a loan with ANZ. He defaulted on his repayments, and the ANZ sold the property by public auction in November 2009. ANZ then commenced proceedings to recover the shortfall plus interest. Mr Fung's defence and counterclaim are that ANZ caused him loss by changing its lending criteria and that ANZ's agent misled him into believing that ANZ would grant him a construction loan. The District Court struck out the defence and counterclaim, finding that ANZ's agent was not its employee and that the change in lending criteria did not constitute misleading and deceptive conduct. Mr Fung's grounds of appeal are that ANZ's agent was acting as its employee, that the Westpac case should not apply to this case, that Fogarty J's judgment in Westpac was incorrect, that ANZ's change in lending criteria constituted misleading and deceptive conduct, and that ANZ owed him a duty of care and breached it negligently. The court found that ANZ's agent was not its employee, that the Westpac case applied to this case, that Fogarty J's judgment in Westpac was correct, that ANZ's change in lending criteria did not constitute misleading and deceptive conduct, and that ANZ did not owe Mr Fung a duty of care or breach it negligently. The appeal was dismissed, and leave was granted to apply for costs.

Orders