Ge Custodians v Bartle

IN THE SUPREME COURT OF NEW ZEALAND
SC 52/2010
[2010] NZSC 96
BETWEENGE CUSTODIANS

Appellant

ANDBRUCE LEONARD BARTLE AND DOROTHY JUDITH BARTLE

First Respondents
ANDBARTLE PROPERTIES LIMITED

Second Respondent
ANDJONATHAN MATHIAS

Third Respondent

Court:Elias CJ, Tipping and McGrath JJ
Counsel:J A Farmer QC, B J Upton and M V Robinson for Appellant

J G Miles QC, P J Dale and D W Grove for Respondents

Judgment:5 August 2010

JUDGMENT OF THE COURT

A Leave to appeal is granted.
BThe approved ground of appeal is whether the credit contracts were oppressive in terms of the Credit Contracts and Consumer Finance Act 2003.

REASONS
[1]        The approved ground is stated in terms that will enable counsel for the appellant and the first and second respondents to address the issues respectively raised in their written submissions on the leave application. The ground does not, however, extend to permit argument on the question of relief if the appeal is dismissed. The Court of Appeal[1] has referred relief back to the High Court for decision. Randerson J decided on 4 June 2010 that the High Court’s consideration of it should await the outcome of the appeal process in this Court. No appeal has been brought against that decision. We are satisfied that we should not permit it to be addressed in this appeal.
[1]Bartle v GE Custodians [2010] NZCA 174.
[2]        The first and second respondents have also applied for an order for payment of their reasonable costs by the appellant on an indemnity basis whatever the outcome of the appeal. They submit that their case is clearly arguable (as to which there is no issue), that there is a substantial public interest in obtaining a decision of this Court on the issues raised by the appeal, and that it would be onerous to expect them to fund the appeal.
[3]        The first and second respondents did not make such an application at an earlier stage of the proceedings. They have filed an affidavit which makes clear that, although the first respondents are part of a large group, the litigation is being funded largely by the forbearance of their solicitors and counsel. The general rule is that decisions on costs follow the outcome of the litigation when the ultimate merits are apparent and account can be taken of the way in which litigation is conducted.[2]   This Court does not presently have before it either factual findings or a record of evidence that enables it to deal with costs on the merits. On what has been provided to us, however, we are satisfied that this is not a case for any pre-emptive costs order as a condition of granting leave. Accordingly we dismiss the application, without prejudice to any submissions for costs that the parties wish to make at the hearing.
[2]      Berkett v Cave [2001] 1 NZLR 667 (CA) at [12].
[4]
We accept the respondent’s submissions that the appeal should be given an early fixture. Neither party has given an indication of counsel’s preferred dates for the hearing of the appeal in the event that leave is given as required by r 20(4) of the

Supreme Court Rules 2004. Following consideration of any submissions made in accordance with r 32 the appeal should, however, be given a two day fixture as soon as possible after 1 October 2010.
Solicitors:
Simpson Grierson, Auckland for Appellant
Ellis Law, Auckland for First and Second Respondents

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Ge Custodians v Bartle involves an appeal by the Ge Custodians against the decision of the Court of Appeal. The Ge Custodians are challenging the ruling of the Court of Appeal that the credit contracts in question were not oppressive under the Credit Contracts and Consumer Finance Act 2003. The respondents, Bruce Leonard Bartle, Dorothy Judith Bartle, Bartle Properties Limited, and Jonathan Mathias, are defending the Court of Appeal’s decision. The primary issue before the Supreme Court is whether the credit contracts were indeed oppressive within the meaning of the Act. The Court of Appeal had already addressed this question, concluding that the contracts were not oppressive. The Supreme Court is now tasked with reviewing this determination to ascertain whether the Court of Appeal's interpretation and application of the Act were correct.

The Supreme Court considered the submissions from both parties regarding the oppressiveness of the credit contracts. The Ge Custodians argued that the Court of Appeal had erred in its interpretation of the Act, leading to an incorrect conclusion about the oppressiveness of the contracts. On the other hand, the respondents maintained that the Court of Appeal's decision was sound and should be upheld. The Supreme Court acknowledged that the issue of oppressiveness was indeed arguable and that there was significant public interest in the matter, warranting a definitive resolution by the highest court. Additionally, the respondents applied for an order for their reasonable costs to be paid by the appellant on an indemnity basis, regardless of the appeal's outcome. The Supreme Court, however, dismissed this application, deciding that it was premature to address costs without further evidence and factual findings.

The Supreme Court granted leave to appeal, focusing solely on the issue of the oppressiveness of the credit contracts, as defined by the Credit Contracts and Consumer Finance Act 2003. The court declined to consider the question of relief if the appeal were to be dismissed, deferring that matter to the High Court. Furthermore, the Supreme Court decided against making a pre-emptive costs order, leaving such matters to be addressed at the conclusion of the appeal. The appeal was scheduled to be heard over two days as soon as possible after October 1, 2010. This decision ensures that the critical issue of the oppressiveness of the credit contracts will be thoroughly examined by the Supreme Court, providing clarity and resolution to the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established