Kumar v Heartland Bank Limited - [2023] NZHC 283

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-470-000064

[2023] NZHC 283

BETWEEN
DEVENDER KUMAR

First Appellant

AND

ATTRI AND SONS

Second Appellant

AND

HEARTLAND BANK LIMITED

Respondent

Hearing: 1 June 2022

Appearances:

A C N Fuiava and C Richardson for Appellants A W Johnson for Respondent

Judgment:

23 February 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 23 February 2023 at 4PM pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Denham Bramwell, Auckland Martelli McKegg, Auckland

KUMAR v ATTRI AND SONS [2023] NZHC 283 [23 February 2023]

Introduction

[1] Devender Kumar (Mr Kumar) and Attri and Sons Ltd (Attri) (collectively the appellants) appeal against the decision of Judge I D R Cameron delivered in the District Court at Tauranga on 6 May 2021.1 The Judge declined an application by Mr Kumar for an adjournment of Heartland Bank Limited’s (the Bank) summary judgment application, and entered summary judgment against both Mr Kumar and Attri in the sum of $66,723.85 together with interest and costs being the amount outstanding of a loan facility borrowed by Attri, and which Mr Kumar had guaranteed.2

[2] The appellants now appeal against Judge Cameron’s decision declining the application for an adjournment of the hearing of the summary judgment application, and his decision to grant summary judgment.

[3] The parties are agreed that affidavits by Mr Kumar dated 17 June 2021 and 27 August 2021, and the affidavit of Mr Benjamin Gillies of the Asset Management division of the Bank, be admitted as evidence for the purposes of the appeal.

Background

[4] On 22 June 2016 Attri entered into a franchise agreement with Paper Plus New Zealand Ltd (Paper Plus), pursuant to which it operated a Paper Plus branded retail shop in Otorohanga. Mr Kumar was a guarantor under the Paper Plus franchise agreement. The Paper Plus retail business conducted by Attri was one of several businesses it owned and operated from the same premises, others being a Sports World business, a Lotto outlet, and a New Zealand Post shop.

[5] To support the operation of the businesses Attri and Mr Kumar arranged a loan facility with the Bank. On 7 July 2016, the Bank as lender and Attri as borrower executed a Term Loan Facility Agreement (the Facility Agreement). Mr Kumar executed the Facility Agreement as the sole director of Attri, and also as guarantor.

1 A reserved judgment giving reasons was delivered on 10 May 2021.
2 Heartland Bank v Attri and Sons Ltd [2021] NZDC 8364 at [1].

[6]Pursuant to the terms of the Facility Agreement the Bank agreed to lend Attri

$270,600 for a term of 60 months. The Facility Agreement required Attri to provide security for the borrowing, by granting a first ranking security over its assets, and by Mr Kumar executing an all obligations personal guarantee and indemnity in respect of all monies advanced by the Bank and payable by Attri…

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 Kumar v Heartland Bank Limited 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: [2023] NZHC 283
Decision Date: 23 February 2023

CaseChat Overview and Summary

Kumar v Attri and Sons Ltd [2023] NZHC 283 concerns an appeal against a District Court decision to decline an application for an adjournment of a summary judgment application and to enter summary judgment against the appellants. The appellants, Devender Kumar and Attri and Sons Ltd, had borrowed money from Heartland Bank Limited and Mr Kumar had guaranteed the loan. The Bank initiated proceedings against the appellants for the outstanding debt, and applied for summary judgment. The appellants sought an adjournment of the hearing of the summary judgment application to allow time for legal aid to be approved and for legal representation to be arranged. The District Court declined the application for an adjournment and entered summary judgment against the appellants. The appellants appeal against the decision to decline the application for an adjournment and the decision to enter summary judgment.

The court held that the District Court judge erred in declining the application for an adjournment and in finding that the appellants had no arguable defence to the Bank's claim. The judge did not adequately consider the merits of the adjournment application and the significant prejudice that would result if the application was declined. The court found that the appellants had an arguable defence to the Bank's claim based on the Bank's involvement in the conduct of the receivers appointed by Paper Plus. The court quashed the summary judgment entered against the appellants and remitted the proceeding back to the District Court to proceed as a standard civil proceeding. The appellants were awarded costs.

Orders