Kerr v Bank of New Zealand
[2025] NZSC 88
•24 July 2025
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 14/2025 [2025] NZSC 88 |
| BETWEEN | GEORGE CHARLES DESMOND KERR |
| AND | BANK OF NEW ZEALAND |
| Court: | Glazebrook, Kós and Miller JJ |
Counsel: | J K Goodall KC, K F T Stolberger and S J Nicolson for First Applicant |
Judgment: | 24 July 2025 |
JUDGMENT OF THE COURT
A The application to adduce further evidence is declined.
B The application for leave to appeal is dismissed.
CThe applicants must pay the respondent one set of costs of $2,500.
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REASONS
Background
The first applicant, Mr Kerr, is the sole director of the second to fifth applicants. Two of those companies had debt facilities with the respondent, the Bank of New Zealand (BNZ), which included guarantees and indemnities given by Mr Kerr personally and by three of the applicant companies under his control.
The two debt facilities expired in May 2011 and May 2013, respectively, with respective outstanding balances of $24,994,230.14 and $21,372,948.73 comprising principal, accrued interest and fees. The BNZ commenced summary judgment proceedings in May 2021 to recover the outstanding and indemnity costs awarded against two of the corporate guarantors in a related proceeding. The debtors appear to have lacked sufficient assets to discharge their debts, so the focus of argument in the Courts below was on the liability of the guarantors, including Mr Kerr.
The High Court delivered two judgments, addressing liability and quantum respectively.[1] In the liability judgment, the Judge rejected the applicants’ arguments that the claims against the guarantors were time-barred[2] and that the amounts claimed by the BNZ were inaccurate or uncertain.[3] The quantum judgment recorded judgment debts totalling over $65 million plus interest.[4] The Court of Appeal upheld the High Court judgments in all material respects.[5]
[1]Bank of New Zealand v Lothian Partners Capital Ltd [2022] NZHC 2489 (Associate Judge Gardiner) [HC liability judgment]; and Bank of New Zealand v Lothian Partners Capital Ltd [2023] NZHC 196 (Associate Judge Gardiner) [HC quantum judgment].
[2]HC liability judgment, above n 1, at [283]–[284].
[3]At [422]–[424] and [443].
[4]Under s 22 of the Interest on Money Claims Act 2016.
[5]Kerr v Bank of New Zealand [2024] NZCA 684, [2024] NZCCLR 875 (Courtney, Katz and Jagose JJ) [CA judgment] at [52] and [131].
The applicants now seek leave to appeal to this Court. They submit the Courts below erred in finding that Mr Kerr had acknowledged liability on behalf of the various applicant debtors and guarantors for the purposes of s 47 of the Limitation Act 2010. They also allege irregularities in relation to certified sums of $800,000, $4,000,000 and $163,056, respectively. The applicants seek leave to adduce further evidence from a forensic accounting expert, Steven Cornmell, to support these claims.
Our analysis
We do not consider the proposed appeal raises any matter of general or public importance.[6] We perceive no error in the concurrent findings of the Courts below that Mr Kerr acknowledged liability on behalf of the relevant entities, nor in the Court of Appeal’s approach to s 47 of the Limitation Act.[7]
[6]Senior Courts Act 2016, s 74(2)(a).
[7]HC liability judgment, above n 1, at [283]; and CA judgment, above n 5, at [52].
Nor do we consider the present application discloses any risk of a substantial miscarriage of justice.[8] In Junior Farms Ltd v Hampton Securities Ltd (in liq), this Court made the following observations regarding the application of that standard in the context of a civil appeal:[9]
[4] The miscarriage ground is of limited application in civil cases. It cannot have been intended by the legislature that the Supreme Court, when hearing an appeal in a civil case which has already been the subject of a first, error-correction, appeal … , is to embark on a further exercise of error correction. That is simply not the role of an ultimate appellate court, as can be seen from the practice and jurisprudence of comparable courts in the common law world.
[5] Rather, the miscarriage ground must in civil appeals be taken to have been intended to enable the Court to review the decision of the Court of Appeal on questions of fact, or on questions of law which are not of general or public importance, in the rare case of a sufficiently apparent error, made or left uncorrected by the Court of Appeal, of such a substantial character that it would be repugnant to justice to allow it to go uncorrected in the particular case.
[8]Senior Courts Act, s 74(2)(b).
[9]Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369.
The proposed evidence from Mr Cornmell does raise some questions regarding the sums identified by the applicants, in particular the $800,000 debt mistakenly recorded by the BNZ under one of the loan facilities.[10] However, in the absence of any evidence on the point from Mr Kerr himself, the party best placed to speak to the transactions in issue, those questions do not suffice to demonstrate errors requiring intervention by this Court.[11] Without that primary evidence, we are disinclined to receive secondary, speculative evidence on the matter. Further, the proposed evidence is not fresh; it could have been adduced at first instance but was not.[12] Accordingly, the application to adduce Mr Cornmell’s evidence will be declined.
[10]See CA judgment, above n 5, at [96]–[102].
[11]As to the evidential responsibilities of defendants in summary judgment applications alleging debt, see Treeways 2000 Ltd v Ryan (1995) 8 PRNZ 398 (CA) at 400 per Casey J.
[12]See R v Bain [2004] 1 NZLR 638 (CA) at [22]–[24]; aff’d [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
We therefore consider it is not necessary in the interests of justice for this Court to hear and determine the proposed appeal.[13]
Result
[13]Senior Courts Act, s 74(1).
The application to adduce further evidence is declined.
The application for leave to appeal is dismissed.
The applicants must pay the respondent one set of costs of $2,500.
Solicitors:
Lowndes Jordan, Auckland for First Applicant
Burton Partners, Auckland for Second to Fifth Applicants
MinterEllisonRuddWatts, Auckland for Respondent
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