Haddon v G E Custodians - [2011] NZCA 413

IN THE COURT OF APPEAL OF NEW ZEALAND

CA475/2010
[2011] NZCA 413

BETWEEN GARY FRANCIS HADDON
Applicant

AND G E CUSTODIANS
First Respondent

AND BARBARA GALE HADDON
Second Respondent

AND GRAEME DOUGLAS HADDON
Third Respondent

AND CHRISTOHPER TE IKA TEPARA
Fourth Respondent

AND SANDRA RAEWYN JAMESON
Fifth Respondent

Hearing: 23 August 2011

Court: Ellen France, Randerson and Harrison JJ

Counsel: C S Henry for Appellant
E M S Cox and K N Mortimer for First Respondent
No appearance by or on behalf of Second, Third, Fourth and Fifth Respondents

Judgment: 26 August 2011 at 3 p.m.

JUDGMENT OF THE COURT

AThe application for a stay of execution of the judgment of this Court issued on 21 July 2011 (CA475/2010); [2011] NZCA 335) is dismissed.
BThe costs of the application are reserved.

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REASONS OF THE COURT

Introduction

On 21 July 2011 this Court[1] dismissed an appeal by the applicant (Mr Gary Haddon) after the first respondent (GE Custodians) obtained summary judgment in the High Court.[2]   This granted GE Custodians vacant possession of two properties in respect of which it wished to exercise its power of sale under a mortgage. The first was a property owned by Mr Haddon and his wife at Glendene and the second was a property at Paeroa to be purchased by their son (Mr Graeme Haddon) and his partner (Mr Christopher Tepara).[3] The appeal and this judgment is concerned only with the Glendene property. We will refer to Mr Gary Haddon as Mr Haddon senior and to his son as Mr Haddon junior.
[1]      Haddon v GE Custodians [2011] NZCA 335.
[2]      GE Custodians v Haddon HC Auckland CIV 2009-404-6464, 2 July 2010.
[3]The Paeroa property was ultimately owned by Mr Haddon junior, Mr Tepara and a family trust, the trustees of which included Mr Haddon senior and his wife.
On or about 11 August 2011, Mr Haddon senior filed an application in the Supreme Court for leave to appeal against the decision of this Court. GE Custodians has advised Mr Haddon senior that it wishes to obtain possession of the Glendene property and to proceed to exercise its power of sale, notwithstanding his application for leave to appeal to the Supreme Court.
In consequence, Mr Haddon senior has applied to this Court for a stay of execution of the judgment of this Court under r 30(2) of the Supreme Court Rules 2004. The application is opposed by GE Custodians.

Background

Mr Haddon senior and his wife are in their early 60’s and have lived in the Glendene property for some 40 years. They agreed to assist their son and his partner in the purchase of the Paeroa property. All four jointly borrowed $730,437 on first mortgage from GE Custodians in October 2007 secured over the Glendene and Paeroa properties as well as a property Mr Haddon junior and Mr Tepara owned at Otorohanga.
From the advance, $131,000 was utilised by Mr and Mrs Haddon senior to refinance their existing first mortgage on the…

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 Haddon v G E Custodians

Details

AGLC: Haddon v G E Custodians [2011] NZCA 413
Case: [2011] NZCA 413
Decision Date: 26 August 2011

CaseChat Overview and Summary

The case of Haddon v G E Custodians, heard in the Court of Appeal of New Zealand, involved Gary Haddon (Mr. Haddon senior) and his wife versus G E Custodians, the first respondent. The primary dispute centered around the enforcement of a mortgage by G E Custodians on two properties, with the Glendene property being the primary focus of the appeal. Mr. Haddon senior sought to challenge the High Court's grant of summary judgment in favor of G E Custodians, which allowed them to proceed with the sale of the Glendene property. The legal issues in this case revolved around whether G E Custodians had complied with disclosure duties under the Credit Contracts and Consumer Finance Act 2003, and whether the terms of the credit contract were oppressive or if there were grounds to reopen the contract.

The court found that the disclosure requirements of the Credit Contracts and Consumer Finance Act did not apply to the loan in question and that even if they did, G E Custodians had substantially complied with them. Additionally, the court determined that the terms of the contract were conventional, and there was no evidence that G E Custodians or United (the intermediary) had induced Mr. and Mrs. Haddon senior into the transaction. The court also highlighted that all borrowers had consciously assumed the risks and had independent legal advice before proceeding with the transaction. Therefore, the court upheld the summary judgment in favor of G E Custodians, dismissing the appeal. The court concluded that the application for a stay of execution of the judgment should be dismissed, as the prospects of success on appeal were weak and damages would be an adequate remedy.

Orders