Mills v ASB Bank Limited

[2021] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA506/2019
 [2021] NZCA 259

BETWEEN	LYNETTE JOY MILLS Appellant
AND	ASB BANK LIMITED Respondent

Court:	Clifford J, Gilbert J and Goddard J
Counsel:	Appellant in Person B J Upton for Respondent
Judgment: (On the papers)	21 June 2021 at 3.00 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe order of the District Court entering summary judgment in favour of ASB on all causes of action apart from the claim for breach of s 22 of the Credit Contracts and Consumer Finance Act 2003 is set aside. 

C        The proceedings are remitted to the District Court. 

D        There is no order as to costs.

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REASONS OF THE COURT

(Given by Goddard J)

The proceedings in the District Court and High Court

1. Ms Mills brought proceedings against ASB Bank Ltd (ASB) seeking compensation for losses that she says she suffered as a result of ASB breaching obligations under the Credit Contracts and Consumer Finance Act 2003 (the CCCFA) and the law of negligence.

2. ASB applied for summary judgment, or in the alternative, to strike out the claim.  Judge Courtney granted summary judgment in favour of ASB in respect of all of Ms Mills’ claims, other than a cause of action under s 22 of the CCCFA.[1]  Ms Mills appealed to the High Court.  Clark J dismissed Ms Mills’ appeal.[2]  Clark J subsequently declined an application by Ms Mills for leave to appeal to this Court.[3]

The appeal to this Court

[1]Peterson v ASB Bank Ltd [2018] NZDC 14505.

[2]Mills v ASB Bank Ltd [2019] NZHC 1505.

[3]Mills v ASB Bank Ltd [2019] NZHC 2383.

1. This Court granted leave to appeal to Ms Mills on the question of whether the District Court was correct to grant summary judgment in favour of ASB on part of Ms Mills’ statement of claim.[4]

   [4]Mills v ASB Bank Ltd [2020] NZCA 228, [2020] NZCCLR 22 at [29].

2. Counsel for ASB have filed a memorandum dated 19 May 2021 advising this Court that ASB consents to Ms Mills’ appeal being allowed.  ASB sought orders that:

   (a)the appeal be allowed by consent;

   (b)Ms Mills’ claims and ASB’s challenges to those claims be returned to the District Court for determination; and

   (c)costs in this Court should lie where they fall.

3. At a telephone conference convened by Goddard J on 17 June 2021, Ms Mills confirmed that she consents to the making of the orders proposed by ASB.  In particular, she does not seek any order in relation to costs in this Court.

4. We are satisfied that it is appropriate for the appeal to be allowed.  The result of allowing the appeal is that the entry of summary judgment on all but one of Ms Mills’ claims is set aside, and the proceedings will continue in the District Court.

Result

1. The appeal is allowed.

2. The order of the District Court entering summary judgment in favour of ASB on all causes of action apart from the claim for breach of s 22 of the CCCFA is set aside. 

3. The proceedings are remitted to the District Court. 

4. There is no order as to costs.

Solicitors:
Simpson Grierson, Auckland for Respondent