Kiwibank Limited v Hutchin - [2014] NZHC 3122

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-002065 [2014] NZHC 3122

BETWEEN
KIWIBANK LIMITED

Plaintiff

AND

M N HUTCHIN AND E S HUTCHIN Defendants

Hearing: 20 November 2014

Appearances:

D A Lester for Plaintiff
JAR Cox for Defendants

Judgment:

8 December 2014

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 8 December 2014 at 5 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

KIWIBANK LTD v HUTCHIN AND HUTCHIN [2014] NZHC 3122 [8 December 2014]

Introduction

[1] The plaintiff, Kiwibank Limited, has applied for summary judgment against the defendants, Mr and Mrs Hutchin, on its claim for $241,978.69, together with interest as from 1 July 2014 at 6.35 per cent per annum. Mr and Mrs Hutchin oppose Kiwibank’s claim and application for summary judgment.

[2] Kiwibank’s application was supported by two affidavits sworn by

Mr I L Kennedy, a recoveries team leader employed by Kiwibank, dated 6 August

2014 and 12 November 2014. Mr Hutchin swore an affidavit in opposition to the application for summary judgment dated 3 October 2014.

Background facts

[3] On 23 June 2000 Mr and Mrs Hutchin borrowed a total of $544,000 from AMP Bank Ltd, for a term of 25 years. The lending was secured by a registered first mortgage over their properties at Seaview Road, Glenfield; Emily Place, Auckland; and 125A Birkdale Road, Birkdale. The Seaview Road property was sold in November 2002. The sale proceeds were applied to reduce AMP Bank’s lending to
$246,000. The mortgage over the Seaview Road property was discharged.

[4] In 2004, the Hongkong and Shanghai Banking Corporation (“HSBC”)

acquired the AMP Home Loan Portfolio from AMP.

[5] On 8 June 2004, the first mortgages over the properties at Emily Place and Birkdale Road were discharged and those properties transferred to Silverdale Trustees Limited. HSBC’s consent to the transaction was conditional on the KJAM Trust (a trust associated with Mr and Mrs Hutchin) providing a guarantee of the amount still owing on Mr and Mrs Hutchin’s loan, to be secured by way of an existing registered first mortgage over their property at Windmill Drive, Silverdale. The property secured separate lending that AMP Bank, then HSBC, had provided to the KJAM Trust. The priority sum in respect of the mortgage over Windmill Drive was increased to $1.30 million.

[6] The Windmill Drive property was sold in December 2005. On 12 December

2005 HSBC advised Mr and Mrs Hutchin’s solicitors, Bloomfield Cox, that it required a partial repayment in the sum of $403,645.19. HSBC’s notification to Bloomfield Cox referred to facilities under two account references: 036-015550 (the separate lending to the KJAM Trust) and 036-263234 (the lending to Mr and Mrs Hutchin which had been transferred in 2004). The notification further recorded that the partial repayment would be applied to the 036-015550 account lending, only. No repayment of the 036-263234 account was recorded. The mortgage over Windmill Drive was discharged. Mr and Mrs Hutchin continued to make…

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.

Keep reading for free

Create a free CaseChat account to read Kiwibank Limited v Hutchin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 3122
Decision Date: 8 December 2014

CaseChat Overview and Summary

In Kiwibank Limited v Hutchin, Kiwibank Limited sought summary judgment against Mr and Mrs Hutchin for an outstanding loan amount of $241,978.69, plus interest. The Hutchins opposed Kiwibank's application for summary judgment, arguing various defences. The primary issues before the court were whether there was an outstanding loan, if Kiwibank had standing to recover the loan, if the limitation period had expired, if Kiwibank was estopped from claiming repayment, and if the court should exercise its residual discretion to decline to give summary judgment.

The court found that there was no evidence to suggest that the Hutchins' loan was repaid in 2004 or 2005. The court also concluded that Kiwibank had standing to bring the proceeding, as there was clear evidence that the loan was transferred from HSBC to Kiwibank. The court further held that the limitation period had not expired, as the Hutchins continued to make payments until 2013, and Kiwibank was within its rights to demand repayment upon default. Lastly, the court found that the Hutchins had not established any of the requirements for a valid estoppel submission. The court exercised its discretion to give summary judgment in favour of Kiwibank, awarding them the outstanding amount, interest, and costs of the proceeding.

In summary, the court found that the Hutchins' defences were not reasonably arguable and granted Kiwibank's application for summary judgment.

Orders