Haddon v GE Custodians - [2011] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

CA475/2010
[2011] NZCA 335

BETWEEN GARY FRANCIS HADDON
Appellant

AND GE CUSTODIANS
First Respondent

AND BARBARA GALE HADDON
Second Respondent

AND GRAEME DOUGLAS HADDON
Third Respondent

AND CHRISTOPHER TE IKA TEPARA
Fourth Respondent

AND SANDRA RAEWYN JAMESON
Fifth Respondent

Hearing: 21 June 2011

Court: Randerson, Keane and Allan JJ

Counsel: C S Henry for Appellant
E M S Cox for Respondent

Judgment: 21 July 2011 at 3 p.m.

JUDGMENT OF THE COURT

AThe appeal is dismissed.
B The appellant must pay to the first respondent costs as for a standard appeal on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

Table of Contents

Para No
Genesis of transaction	[9]
Potentially frustrating events	[21]
Elements of transaction	[26]
Default events	[33]
Grounds for opposition	[39]
Judgment under appeal	[42]
Absence of prior disclosure	[54]
Pleading point	[57]
Inapplicable duty	[60]
Duty complied with	[65]
Oppression	[68]
Ability to re-open oppressive transaction	[79]
Conclusions	[89]

On 2 July 2010 GE Custodians, in its capacity as mortgagee, obtained summary judgment in the High Court, Auckland, granting it vacant possession of two properties in respect of which it wished to exercise its power of sale.[1]
[1] GE Custodians v Haddon HC Auckland CIV-2009-404-6464, 2 July 2010.
The first property, a 3.76 hectare Paeroa farmlet, belonged to Graeme Haddon and his partner Christopher Tepara together with the trustees of the Haddon Family Trust. The trustees were Graeme Haddon's father, Gary Haddon (Mr Haddon), the appellant, and his mother Barbara Haddon, and his cousin, Sandra Jameson. The second property was Mr and Mrs Haddon's home in Glendene, Auckland. On this appeal Gary Haddon alone appeals the judgment given as it relates to him in his personal capacity and as it affects the Glendene property only.
Essentially, Mr Haddon contends in his notice of appeal that in granting summary judgment Associate Judge Christiansen went beyond the essential question he had to decide, which was whether GE had established that Mr Haddon and his co-borrowers were devoid of a reasonably arguable defence. On incomplete evidence, Mr Haddon contends, the Judge instead entered completely into the merits of the case, and made a series of errors.
On the appeal itself Mr Haddon has also taken a threshold point, not taken in his notice of appeal, to which he adverted only implicitly in his amended notice of opposition to summary judgment and never advanced before the Judge. It is that GE is prohibited from enforcing its credit contract with the trustees, and thus the mortgage over the Glendene property, because GE neither pleaded nor proved that it had complied with its duty under the Credit Contracts and Consumer Finance Act (CCCFA) 2003 to make initial disclosure.
Principally, Mr Haddon contends however in his notice of appeal that the Judge erred when he concluded, without any basis in the evidence, that he and his co-borrowers did not have an arguable claim of oppression under 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 GE Custodians

Details

AGLC: Haddon v GE Custodians [2011] NZCA 335
Case: [2011] NZCA 335
Decision Date: 21 July 2011

CaseChat Overview and Summary

Gary Haddon appeals against a summary judgment obtained by GE Custodians in the High Court, Auckland. GE Custodians had obtained a judgment for vacant possession of two properties, one of which belonged to Gary Haddon and his wife. The appeal concerns the Glendene property only. The primary issue is whether the Judge erred in concluding that Gary Haddon and his co-borrowers did not have an arguable claim of oppression under the Credit Contracts and Consumer Finance Act (CCCFA). The Court of Appeal found that the Judge was correct in his decision, and dismissed the appeal. The Court found that GE Custodians did not have a duty of care to the borrowers, and that the loan agreement was not a "consumer credit contract". The Court also found that the loan agreement was not oppressive, and that the borrowers had been independently advised. The Court held that the borrowers had assumed the risk of the loan transaction, and that GE Custodians was not aware of the borrowers' inability to meet their obligations. The Court of Appeal dismissed the appeal and ordered Gary Haddon to pay the costs of the appeal.

Orders