Meroiti v Southern Receivables Limited
[2017] NZHC 2637
•27 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-102 [2017] NZHC 2637
IN THE MATTER of an appeal of a decision of the District
Court for Summary Judgment
BETWEEN
GARY MEROITI Appellant
AND
SOUTHERN RECEIVABLES LIMITED Respondent
Hearing: 18 August 2017 Appearances:
Appellant, self-represented
K M McMullen for RespondentJudgment:
27 October 2017
JUDGMENT OF CHURCHMAN J
Introduction | Kupu whakataki
[1] Mr Meroiti (the appellant) had summary judgment entered against him in the District Court on 8 November 2016, requiring him to pay $26,114.13 plus interest and costs to Southern Receivables Limited (SRL, the respondent). He appealed this summary judgment as incorrect at law and in fact. There are two key questions for this appeal. The first is whether the appellant’s interpretation of the Property Law Act 2007 (PLA) is correct in that an assignment of a debt is not valid unless the debtor is notified of it. The second is what evidential basis was required for the
Judge to find there was a debt owed and payable to SRL.
MEROITI v SOUTHERN RECEIVABLES LIMITED [2017] NZHC 2637 [27 October 2017]
Factual background | Ngā meka matua
[2] The appellant entered into a credit arrangement with ANZ Bank New Zealand Ltd (formerly ANZ National Bank) (ANZ) on or about 12 October 2000. The original account application form and the terms and conditions are no longer available as ANZ does not keep records after seven years.
[3] Mr Meroiti was originally issued a ‘Qantas Telstra ANZ Visa Gold’ card and account. This was upgraded to a ‘Qantas ANZ Visa Platinum’ card between August 2006 and May 2007.
[4] Mr Meroiti enjoyed the immediate benefits of his credit card account between
12 October 2000 and 22 January 2010, when a final advance of $500 was made to him. The credit account remained open with ANZ and Mr Meroiti continued to make deposits towards the debt until 7 July 2011. Contrary to Mr Meroiti’s assertions, the credit account was not cancelled on 25 August 2010.
[5] Mr Meroiti’s credit card debt (the debt) with ANZ was $33,301.48 at
26 July 2011. It was assigned to Southern Receivables Limited (SRL) on or about
9 February 2012 in accordance with the assignment agreement between ANZ, SRL
and Receivables Management (NZ) Limited (RML).
[6] SRL engaged RML to act on its behalf as an agent to take collection action to bring about payment of the debt.
[7] On or around 10 February 2012 RML allegedly sent what was known at a
’45 letter’ to Mr Meroiti. This letter advised Mr Meroiti that his debt had been assigned and SRL was now the legal owner. Mr Meroiti disputes having received this letter.
[8] Between 27 May 2012 and 25 November 2014 Mr Meroiti made payments to
RML’s BNZ bank account totalling $10,806.00 in payment of the debt.
[9] On 16 January 2016 Mr Meroiti received a Notice of Proceeding from SRL
dated 1 December 2015 to recover the debt. Summary judgment was entered against
Mr Meroiti on 8 November 2016 for the sum of $26,114.13 plus interest and costs. Mr Meroiti’s appeal was filed out of time on 21 February 2017.
District Court decision | Whakatau a te Kōti ā Rohe
[10] Judge Walker on 8 November 2016 held:1
(a) The principles of summary judgment are well established. SRL was required to satisfy the Court that the appellant had no arguable defence to the claim.
(b)The first proposed defence that there could be no assignment of debt, as there was no contractual term between him and ANZ permitting assignment, was not arguable as the assignment occurred under s 50 of the PLA. There was no requirement at law that Mr Meroiti agree to the assignment.
(c) The second proposed defence that there could be no assignment of debt until Mr Meroiti was notified of the assignment was incorrect at law. While the assignment agreement between ANZ and SRL required notice be given to Mr Meroiti, failure to do so did not affect
the validity of the statutory assignment.2 The disputed evidence as to
whether Mr Meroiti actually received notice, even if determined in his favour does not provide a legal defence to the claim.
(d)The third proposed defence that there could be no assignment of debt until Mr Meroiti was notified in accordance with s 26A of the Credit Contracts and Consumer Finance Act 2003 (CCCFA) was not arguable as the CCCFA only applied to contracts entered into after 1
April 2005. The relevant consumer protection law at the time of the
contract between Mr Meroiti and the bank was the Credit Contracts
1 Southern Receivables Limited v Meroiti [2016] NZDC 21813.
2 Southern Receivables Limited v Meroiti above n 1 at [11], citing Commercial Factors Limited v
Wave Transport Limited [2014] NZHC 3325.
Act 1981 (CCA) which did not require any sort of notice around assignment.
(e) The fourth proposed defence was that SRL failed to comply with disclosure requirements under relevant consumer credit legislation. Judge Walker held the standard of disclosure remained that of the Credit Contracts Act 1981. Further, that as an assignee, SRL had no ongoing disclosure requirements. Mr Meroiti had been given ongoing disclosures by ANZ during the period of his relationship with them, particularly through monthly statements.
(f) The fifth proposed defence that the Bank had an ongoing interest in the debt and that this meant the assignment was invalid was not made out in fact.
(g) None of the defences raised by Mr Meroiti were arguable.
(h)Mr Meroiti went on to submit that there was an insufficient evidential basis for the judge to make summary judgment upon.
(i)Mr Meroiti had submitted that there was no evidence of him having entering into a credit agreement, and if he had entered into a credit arrangement with his original card of issue, that the subsequent cards issued were not necessarily governed by such terms.
(j)The Judge held that all of the cards were issued by ANZ; and all were attached to credit card accounts, regardless of the particular product name given to the cards.
(k)Whatever the history of the issue of the cards, Mr Meroiti had used subsequent cards issued to him, and the increased credit levels available to him. He made payments in reduction of his debt between
2012 and 2014, after the debt was assigned. Mr Meroiti
acknowledged the debt exists. Interest continued to accrue on the amount at the contractual rate of 19.95% per annum.
(l)Summary judgment was ordered for the amount of $26,114.13, together with interest at a rate of 19.95% for one year from the date of assignment and costs to SRL on a 2B basis.
Submissions | Ngā tāpaetanga
[11] There are two questions on appeal: whether any of Mr Meroiti’s defences were arguable, and whether there was a sufficient evidential basis for summary judgment to be entered. The appellant’s many submissions on the first issue can be broadly summarised as follows:
(a) Judge Walker was wrong in law to find SRL was entitled to pursue the appellant for the recovery of the debt, as s 51(3) of the PLA requires debtors to be given notice of assignment.
(b)Judge Walker was wrong in law to find that notice can be retrospective.
(c) Judge Walker was wrong in law to find that debt repayments by the appellant to RML supported the finding that the appellant was aware of or accepted the assignment of the debt to SRL.
(d)Judge Walker was wrong in law to find that s 26A of the CCCFA did not apply, and that the Credit Contracts Act 1981 applied.
(e) Judge Walker was wrong in law to find that the disclosure requirements of the CCCFA did not apply.
[12] Regarding the second challenge as to the evidential basis, the appellant’s submissions can be summarised as Judge Walker was wrong in fact to find SRL was entitled to pursue the appellant for the recovery of the debt, as there was no evidence adduced by SRL of:
(a) the original credit contract or its terms and conditions (2000 Terms);
(i)and consequently no evidence that the 2000 Terms permitted assignment of the debt to SRL; or
(ii)that the appellant was aware of the right of ANZ to assign the debt.
(b) any of the subsequent credit contract terms (2006/2007 Terms);
(i) and consequently that the appellant agreed to those terms; or
(ii) that those terms permitted assignment of the debt.
(c) the appellant “using” the credit card after 15 February 2010.
(d)the appellant receiving the alleged notice of assignment in 2012 or subsequently.
[13] Wisely, and tellingly, Mr Meroiti did not and could not challenge the existence of a debt, amounting to $26,114.13. He can only challenge to whom that debt is owed, how debts can be assigned between parties and the evidential standard to which assignees must prove an assignment for summary judgment. Should he succeed on this appeal, he is anticipating either that SRL will be required to
‘reassign’ the debt back to ANZ for ANZ to pursue, or that SRL will need to obtain a substantive judgment against him in the District Court, at which point he can challenge the evidence upon which SRL relies.
[14] Submissions for the respondent were as follows:
(a) There was no error of law as the Judge applied the PLA correctly.
Specifically:
(i)SRL in its statement of claim does not need to prove actual notice of assignment under s 51(3) and accordingly, the Court
did not need to make any findings as to notice and, in the alternative;
(ii)The appellant had actual notice of the assignment in several ways.
(b)There was no error by the Judge in failing to accept the appellant’s submissions about the factual basis of the debt and the Court was correct on the evidence to find that there was a credit arrangement and consequently a debt enforceable by SRL.
Approach on appeal | Te kawa mō te pīra
[15] The first question is for the Court to decide whether leave to appeal out of time ought to be granted. Such leave is an indulgence of the Court3 and must be decided in accordance with the overriding interests of justice.4 The Court will also consider the reasons for failing to bring the appeal in time, as well as any prejudice caused and the merits of the intended appeal.
[16] The second question is the appropriate approach to an appeal of this nature.
[17] In an appeal from a District Court summary judgment the approach required is (emphasis added):5
… in summary judgment applications the evidence is addressed on affidavits
… I am in as good a position as the Court below to reach determinations,
nevertheless an appellate Court is not simply entitled to substitute its views for that of the Court below. Rather its duty is to determine whether or not there was a proper basis open on the evidence upon which the Court below could have reached the decision that it did. If there is such a basis and if the Court below has applied the proper legal tests then the decision should stand.
[18] An appeal of a District Court summary judgment is to be by way of rehearing. This requires consideration and appropriate weight to be given to the
reasoning of the learned District Court Judge, with the High Court also having the
3 Christchurch City Council v McVicar HC Christchurch CIV-2004-485-925, 20 May 2004.
4 Stedmances v Stedmances [1987] 2 NZLR 336.
5 Washworld Services (Auckland) Ltd v MF Astley Ltd HC Auckland HC90/98, 11 August 1998 at
3.
responsibility to make its own assessment of the merits of the case.6 The onus is on
the appellant to prove that the lower Court’s decision is wrong.7
Law | Ture
[19] There are two key questions of law:
(a) What notice must a debtor receive for the legal assignment of his or her debt to be valid?
(b)What standard of evidence is required for a Judge to make a finding in a summary judgment application?
Legal assignment requirements
[20] Sections 50 and 51 of the PLA read (emphasis added):
50 How thing in action assigned
(1) The absolute assignment in writing of a legal or equitable thing in action, signed by the assignor, passes to the assignee—
(a) all the rights of the assignor in relation to the thing in action;
and
(b) all the remedies of the assignor in relation to the thing in action;
and
(c) the power to give a good discharge to the debtor.
(2) Subsection (1) applies whether or not the assignment is given for valuable consideration.
(3) Subsection (1) applies subject to—
(a) section 51; and
(b) any equities in relation to the thing in action that arise before the debtor has actual notice of the assignment and would, but for subsection (1), have priority over the rights of the assignee.
(4) The priority of an assignment to which subsection (1) applies and which is not given for valuable consideration is to be determined as if the assignment had been given for valuable consideration.
6 Oggi Advertising Ltd v Harrington HC Auckland CIV-2010-404-548, 22 July 2010 at [14].
7 Green v Green [2016] NZCA 486 at [30].
(5) A legal or equitable thing in action is to be treated as having been assigned in equity (whether the assignment is oral or in writing) if—
(a) the assignee has given valuable consideration for the assignment; or
(b) the assignment is complete. (6) Subsection (5)—
(a) prevails over any rule of equity to the contrary; but
(b) applies subject to sections 24 and 25.
(7) An assignment to which subsection (5) applies is complete when the assignor has done everything that needs to be done by the assignor to transfer to the assignee (whether absolutely, conditionally, or by way of charge) the rights of the assignor in relation to the thing in action.
(8) Subsection (7) applies even though some other thing may remain to be done, without the intervention or assistance of the assignor, in order to confer title to the rights on the assignee.
51 Further consequences of assignment of thing in action
(1) This section applies to a thing in action assigned in accordance with section 50(1) or in equity.
(2) Payment of all or part of the debt to the assignor by a debtor who does not have actual notice of the assignment discharges the debtor to the extent of the payment.
(3) The debt owing by a debtor who has actual notice of the assignment is payable to the assignee.
(4) However, the debt is payable to another assignee if,—
(a) before discharge, the debtor receives actual notice of the assignment of the same thing in action to the other assignee; and
(b) the rights of the other assignee in relation to the thing in action have priority over the rights of the first assignee.
(5) A debtor may interplead in any proceeding brought against the debtor for the payment of the debt, or apply to a court for an order determining the entitlement to any right in relation to a thing in action, if the debtor has actual notice—
(a) that an assignment of the thing in action is disputed by the assignee or anyone claiming under the assignor; or
(b) that there are other opposing or conflicting claims in relation to the thing in action.
[21] A “thing in action” is defined as a right to receive payment of a debt.8
Evidence in summary judgment proceedings
[22] The second issue of law relates to evidential standards in a summary judgment, that is, what facts need to be proven for a summary judgment to be made. Where there is a dispute of fact upon which the case turns, summary judgment will not normally be appropriate. However, the courts are entitled to scrutinise affidavits to ensure they pass the threshold of credibility.9 A bald allegation of a dispute will generally not be sufficient, otherwise the summary judgment procedure would be without teeth. There must be some sort of internal consistency in each affidavit, supported where possible by documentary evidence and other affidavits.
[23] The Court will take a robust view on conflicts of evidence:10
The Court must be left without any real doubt or uncertainty. … The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable. … In the end the Court's assessment of the evidence is a matter of judgment.
[24] In Cavell Leitch Pringle Boyle v Dominion Finance Group Ltd the Court of Appeal held that summary judgment was inappropriate “[on] the pleadings and the minimal evidence presented”.11 The determinative issue in that case was that while “any breach of a solicitor’s undertaking is serious, it is at least arguable that the amount ordered to be paid by must bear some relationship to any actual loss suffered”.12 The case also discussed inadequate the debtor’s inadequate knowledge of the assignment. However the law applicable at the time was the Property Law Act
1952 (the 1952 Act) which had different notice requirements to the current PLA.
8 Property Law Act 2007, s 48.
9 Pemberton v Chappell [1987] 1 NZLR 1, (1986) 1 PRNZ 183 (CA) at 4, 185.
10 Krukziener v Hanover Finance Ltd (2008) 19 PRNZ 162 (CA) at [26]; Bilbie Dymock
Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
11 Cavell Leitch Pringle Boyle v Dominion Finance Group Ltd [2009] NZCA 7 at [23].
Analysis – arguable defences
[25] I have considered the variety of reasons why the appellant was delayed in filing his appeal correctly with the High Court until 21 February 2017, and some of them are compelling; the earthquake-related closure and the consequent confusion around the location of the High Court, the High Court close down over Christmas and his wife’s emergency surgery. The affidavit filed by Mr Meroiti on 21 February
2017 does not adequately explain other portions of the delay. I am also not persuaded at all as to the merits of the appeal.
[26] Accordingly I am willing to grant leave to appeal out of time but must impress upon Mr Meroiti that this is a considerable indulgence from the Court. It is a further indulgence that I have read all of his extensive and often repetitive submissions, particularly those filed out of time.
[27] Having granted leave, I will give a substantive judgment as to why Judge
Walker was correct at law and as to the facts.
Arguable defence: s 51(3) of the Property Law Act 2007
[28] The first question is whether any of the grounds advanced by the appellant amount to an arguable defence precluding summary judgment.
[29] Mr Meroiti’s submissions as to notice requirements hinge on his interpretation of ss 50 and 51 of the PLA. The main thrust of his submissions is that he, as the debtor, was legally required to be notified of and consent to any proposed assignment of his debt.
[30] Mr Meroiti’s interpretation of the PLA is incorrect. Subsection 51(3) in isolation might, on a very literal interpretation, give the impression of meaning what the appellant submits. However this is not the end of the matter. The Court must read subsections of statutes within their context, and with regards to the purpose of the section and the Act.13
[31] Section 51 is directed at addressing issues of priority when there are multiple creditors or assignees in relation to a debt. Subsection (1) confirms s 51 is applicable to legal and equitable assignments of things in action. Subsection (2) confirms that in the event a debt has been assigned without notice to the debtor, if the debtor makes payment to the assignor this payment discharges the debt now held by the assignee. The purpose of this section is to protect debtors who continue to pay off their debt without notice of an assignment from being pursued twice for debt repayment. Instead subs (2) creates a requirement that an assignee sort out the ownership of repayment amounts with the assignor.
[32] Subsection (3) confirms that if a debtor has actual notice of the assignment it is payable to the assignee. The focus of the section is not whether or not the debt is payable, but to whom it is payable. The effect is to direct the parties to know whom to pursue for the debt (and any money paid to discharge it). It does not change the obligation to repay the debt.
[33] This is further confirmed by subs (4) which sets out which assignee gets priority of repayment in the event of multiple assignees. Such priority is determined by ‘actual notice’. Subsection (5) gives the debtor recourse in a debt collection proceeding against him or her to request the court make an order confirming which assignee has priority.
[34] The 1952 Act required that the assignment of a debt be in writing and that the debtor receive express notice of the assignment.14 The 2007 PLA did not carry on this requirement for an express notice in writing to be given to the debtor.15 The effectiveness in law of an assignment as between the assignor and assignee is no longer postponed until the debtor has been given notice of the assignment. All the
rights and remedies of the assignor in respect of the chose in action pass to the assignee by virtue of the signed writing of the assignment only.16 The 1952 Act continues to apply to assignments which occurred before 1 January 2008, but it does
not apply to the assignment by ANZ on or around February 2012.
14 Property Law Act 1952, s 130(1) (now repealed).
15 Roger Fenton Choses in action (Laws of New Zealand, LexisNexis, online ed) at [19].
[35] Here there is only a single alleged assignment, and no issue of priority. I therefore find that the District Court Judge was correct in law as to there being no notice requirements.
[36] As there was no legal requirement to give notice to the appellant, I do not need to go into the contested evidence as to precisely when the appellant received notice. It is sufficient that the appellant received notice (at the very latest) by the issuance of proceedings against him in January 2016.
Arguable defence: notice required under consumer protection legislation
[37] I now turn to the notice issues raised under the CCA and the CCCFA.
[38] Perhaps unfortunately for the appellant, his case has fallen in the period between 1 January 2008 and 6 June 2015 when there was no statutory requirement for him to receive notice of the assignment of his debt. This in turn means that all of the evidential disagreement as to whether or not he did in fact receive notice is irrelevant, and cannot form the basis of an arguable defence.
[39] Section 26A of the CCCFA requires that creditors who assign their rights to another creditor to give detailed notice to the debtor as to the new creditor’s identity, registration number, the date of transfer and the impact of the transfer on the debtor. This section only applies to assignments made after 6 June 2015 and is not relevant to this case.17
[40] Judge Walker was correct at law in his finding that there was no applicable consumer protection legislation requiring notice of the assignment which was not complied with.
Arguable defence: contractual obligation to receive notice of assignment
[41] There was a contractual obligation between ANZ and SRL that SRL notify
Mr Meroiti of the assignment. SRL’s alleged failure to do so is a contractual issue
between ANZ and SRL and Mr Meroiti has no standing in such a contractual dispute. Failure to fulfil a contractual obligation to notify an assignment does not invalidate the assignment.18
[42] All in all I am “left without any doubt or uncertainty” that the legal defences
raised by Mr Meroiti were and are unarguable.19
Analysis – evidential findings
[43] I turn now to the question of evidence. In brief, the facts underpinning the statement of claim were:
(a) By a credit card application dated on or around 12 October 2000 ANZ
provided Mr Meroiti with a revolving credit facility and a credit card. (b) The account’s credit limit was $30,000.
(c) Mr Meroiti agreed to pay ANZ the full amount of all transactions debited to his card or card number, together with all fees, charges and interest incurred on the card account.
(d)Mr Meroiti was liable to pay interest to ANZ in accordance with the credit agreement.
(e) If Mr Meroiti did not pay his account he would be in breach of the credit agreement and would be held liable for any legal fees or other costs which ANZ or an agent of ANZ incurred in recovering or attempting to recover any amounts properly payable by the defendant to ANZ.
(f) Mr Meroiti was in breach of the terms of the credit agreement with
ANZ. Mr Meroiti was liable to pay for the transactions incurred on
the credit account, plus accrued fees and interest in accordance with the credit agreement.
(g) The amount outstanding on the debt as at 25 November 2014 was
$22,495.48 plus SRL’s collection costs of $3,618.65 for a total amount
of $26,114.13 owing.
[44] These facts were supported by the documentary evidence of:
(a) An affidavit sworn by Mr Fleming, director of SRL, setting how the assignment occurred and the full assignment contract between ANZ, SRL and RML.
(b)An affidavit sworn by Ms Edwin of ANZ attaching a copy of ANZ’s client management system in relation to Mr Meroiti’s credit account, the terms and conditions applicable to his account (being those that came into effect on 15 February 2010), a selection of copies of statements from the account and the spreadsheet of details of Mr Meroiti’s debt which was provided to SRL. The evidence of Ms Edwin was that while the name of the credit facility had changed over the years, in its final form it was a Qantas ANZ Visa Platinum account and card.
[45] At the summary judgment hearing, the onus was on SRL to satisfy the Court that:
(a) there were sufficient basic facts to raise a prima facie case against the defendant; and
(b)the defendant has no “bona fide defence, no reasonable ground of defence, no fairly arguable defence” and that, overall, there was an absence of any real question to be tried.20
[46] The onus in a summary judgment proceeding is thought to be “substantially greater” on the plaintiff than in a normal civil proceeding, as the summary judgment denies the defendant the ability to challenge the evidence.21 Once there is a prima facie case proven to the Court, the defendant will have to provide sufficient particulars of any defence in order to persuade the Court that the matter should instead go to trial.
[47] Where a decision is “well-supported by the evidence and draws logical and obvious conclusions, and where the appellate court draws the same conclusions, there is no need for intervention” by the appellate court. 22
Original instrument of indebtedness
[48] The overall challenge of Mr Meroiti’s varied submissions dated between 8,
14 and 17 August is that to prove the existence of the debt, SRL were required to
(and failed to) prove the existence of:
(a) the original signed 2000 Terms;
(b) any subsequent amended terms applicable to the credit facility; and
(c) the second credit contract signed in 2006 or 2007 for the Qantas ANZ Visa Platinum card and the terms and conditions applicable to it.
[49] The argument is that without these terms before the Court, and without SRL listing all of the previous names and forms of the credit account in evidence, the Court cannot be satisfied that there was a contract between the appellant and ANZ. Mr Meroiti’s submissions dated 14 and 17 August set out to prove that rather than there being a single credit facility and card, that there were in fact two separate facilities; evidenced by the different account numbers ending in ‘1038’ in 2000 and
‘5828’ in 2012 at the time of assignment, and three separate credit cards across those accounts.
[50] The point the appellant was apparently trying to make was that at least one of those cards was not governed either by the original (not provided) 2000 Terms or the
2010 Terms relied upon by SRL in the District Court. Without proof of these hypothetical third set of terms and conditions Mr Meroiti argues that there is insufficient proof before the Court to persuade it of the existence of the debt.
[51] A similar argument was made in Southern Receivables Limited v Arambasic.23 Here, as in all previous cases, the argument is unpersuasive. It is another form of arguing that SRL must present the ‘original instrument of indebtedness’.
[52] This issue is well settled in New Zealand law; there is no need for any
‘original instrument of indebtedness’.24 Asking ANZ or SRL to produce one is merely a “contrivance” on the part of Mr Meroiti.25 Like in Taituha this is a “vain attempt to avoid liability”.26
[53] The evidence is more than sufficient to satisfy me, as it satisfied Judge Walker, that a contractual relationship existed between the appellant and ANZ. This is further strengthened by the repeat acknowledgements of Mr Meroiti that the debt exists.
[54] Does this type of factual dispute preclude summary judgment being entered? Giles J set out the test in Washworld Services as:27
It is not enough for one party to contend there is a dispute; the Court has to be satisfied that there is a genuine dispute on a matter of substance. If it were otherwise the case, the mere protestation of a dispute of one party would render the summary judgment process nugatory”. Further to this, a “degree of pragmatism must be applied”.
[55] If indeed there were two sets of credit terms and conditions applicable, the question is whether, in the absence of documentary evidence of one set of
contractual terms the District Court could hold that the debt has been proven to the
23 Southern Receivables Ltd v Arambasic [2013] NZHC 2157 at [46] and [47].
24 ASB Bank v Taituha DC Kaikohe CIV-2013-027-241, 21 November 2014 at [19]; Taituha v ASB Bank Ltd [2015] NZHC 1075 at [14].
25 ASB Bank v Taituha DC Kaikohe CIV-2013-027-241, 21 November 2014 at [19].
26 At [19].
27 Washworld Services (Auckland) Ltd v MF Astley Ltd above n 5 at 8.
requisite degree. The pragmatic answer is a resounding yes. The particulars of how and why the ‘Qantas Telstra ANZ Visa Gold’ credit account ending in ‘1038’ were moved to a Visa Gold account and then onto a Visa Platinum account ending ‘5828’ are a matter for the bank and its customers. In a summary judgment the Court does not require evidence of every permutation that a revolving credit facility has gone through in order to be convinced it exists. What remains a constant is the debt, the credit limit of $30,000 and the amount outstanding after approximately ten years of continual use.
[56] The appellant referred the Court to the decision of Financial Trust Limited v Bishop.28 This case is an example of a summary judgment enforcing a debt being held valid by the High Court. In it, Associate Judge Gendall was satisfied that the plaintiff’s clearly established through material before the Court that the defendants had no defence to their claim. Gendall AJ said “the existence of the debt itself is not disputed in any way.”29 The present case is highly analogous. Here, as with Financial Trust Ltd, I adopt the wording of Gendall AJ that :30
The arguments raised by the defendants in opposing the summary judgment application, relating as they do to the assignment of the debt and notice of that assignment are technical … they lack [in my view] any real degree of credibility and must be dismissed.
Is there a valid factual dispute as to whether the 2010 terms and conditions applied to the credit account?
[57] A small peripheral issue Mr Meroiti raised was that the last ‘use of his card’ was on 22 January 2010 as that was the date of the last advance to him. He submits that as the 2010 Terms read “you agree to be bound by these Terms and Conditions (as amended from time to time) by using your Card”, on the facts he was not bound, as he did not ‘use’ the card. Mr Meroiti’s submission is that the continuing existence of the account, and any payments made by him into it do not constitute ‘use’ for the
purpose of the 2010 terms and therefore the 2010 Terms cannot apply.
28 Financial Trust Limited v Bishop HC Wellington CIV-2006-485-2321, 3 April 2007 at [22].
29 At [54].
[58] This argument is facetious. While “use” is not defined in the 2010 Terms, I note that “transaction” is defined, and incorporates “all transactions credited or debited to your Card Account or made using your Card … as well as all amounts you agree with a Merchant may be debited … on a regular basis”. It would be absurd for a bank customer to be able to claim that, as they were not continuing to add to their
$30,000 debt from a certain date, they were not ‘using’ that debt account.
[59] There was more than ample evidence for Judge Walker and I to be satisfied that Mr Meroiti credited his ‘5828’ account on 25 January 2011 ($900) and 7 July
2011 ($13.32). This alone dispenses with all of Mr Meroiti’s arguments as to the
applicability of the 2010 Terms and his consequent arguments about standing.
[60] I further note that in all of the monthly statements provided to Mr Meroiti between 2006 and the time of assignment, the interest rate per annum is published, and has varied over the years between 19.95 per cent and 22 per cent. At the time of assignment it was listed as 19.95 per cent. Judge Walker’s imposition of that interest rate for a period of one year is accordingly correct.
Final comments
[61] Like in Taituha, Mr Meroiti does not dispute the essential facts that:
(a) He applied for an ANZ credit card facility in 2000 and continued to use and benefit from it up until (at least) January 2010.
(b)He received the card associated with the facility with the conditions of use.
(c) He elected to use the card, and subsequent cards issued to him over a period of 10 years.
(d)He exceeded his credit card limit and failed to make the minimum payments as they fell due.
(e) The money is owing.
(f) The amount in issue is $26,114.13.
[62] The Court is required to be “confident, sure, convinced, persuaded to the point of belief”.31 Here, there were ample grounds upon which Judge Walker could be confident and convinced to the point of belief that there was a credit contract between ANZ and Mr Meroiti and that that contract was validly assigned to SRL in
2012.
[63] The appellant’s grounds of appeal are without merit. Here, as in Taitahu, Mr Meroiti is merely expounding alleged technical deficiencies in a futile attempt to avoid liability for charges which, he accepts, he incurred on his ANZ visa credit facility.
Conclusion | Whakatau
[64] The numerous submissions of the appellant can be summarised as two types of challenges raised by the appellant:
(a) whether his proposed defences were arguable in response to SRL’s
claim; and
(b) whether there was a sufficient evidential basis for the District Court
Judge to make a summary judgment upon.
[65] For the reasons set out above, I hold that the Judge was correct at law and there was a sufficient evidential basis for his findings. Mr Meroiti’s attempted factual unpicking does not undermine the fact that he has admitted multiple times there is a debt validly owed. The attempted dispute as to the particular terms of the credit facility, and to what degree they must be proven in Court is futile.
[66] Accordingly I dismiss Mr Meroiti’s appeal. The order for summary judgment
by Judge Walker is confirmed as being for $26,114.13 together with interest at the rate of 19.95 per cent for one year from the date of assignment.
31 Pemberton v Chappell, above n 9, at 185.
[67] In addition to this, under s 87(1) of the Judicature Act 1908 I impose interest of 7.5 per cent per annum on the sum of $22,495.48 (being the actual debt outstanding) from the date of Judge Walker’s judgment until the date of this judgment.32
[68] Costs are to follow the event. SRL is entitled to costs calculated on a
2B basis, together with disbursements as fixed by the Registrar. If there is any dispute as to the quantum of costs, counsel for SRL is to file a memorandum within
10 working days of this judgement with Mr Meroiti to file one in reply within five days of receipt by him of SRL memorandum.
Churchman J
Solicitors:
Appellant, 13 Te Arawi Street, Takapuwahia, Porirua
Cavell Leitch, Christchurch
32 Judicature Act 1908, s 87(1); High Court Rules 2016, r 11.27.
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