Mills v ASB Bank Ltd

[2019] NZHC 2383

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2018-441-78

[2019] NZHC 2383

UNDER THE

Credit Contracts and Consumer Finance Act 2003

IN THE MATTER OF

Statutory breaches by the ASB Bank

BETWEEN

LYNETTE JOY MILLS

Applicant

AND

THE ASB BANK LIMITED

Respondent

Hearing:

On the Papers

Counsel:

Appellant in Person

S L Hawksworth for Respondent

Judgment:

20 September 2019

JUDGMENT OF CLARK J

Background

[1]    Ms Mills and Mr Peterson sued ASB Bank Ltd (ASB or the Bank) in the District Court for losses caused to them by various alleged defaults on the part of ASB. Judge Courtney struck out Mr Peterson’s claims as disclosing no reasonably arguable cause of action and ASB was granted summary judgment against Ms Mills’ causes of action apart from a claim for breach of s 22 of the Credit Contract and Consumer Finance Act 2003 (CCCF Act).1

1      Peterson v ASB Bank Ltd [2018] NZDC 1405 at [60], [68], [79] and [88] [District Court decision].

MILLS v THE ASB BANK LIMITED [2019] NZHC 2383 [20 September 2019]

[2]    Ms Mills appealed to the High Court. In my judgment delivered on 28 June 2019 Ms Mills’ appeal was dismissed.2 Ms Mills now seeks leave to appeal to the Court of Appeal.

Principles applicable to second appeals

[3]    A decision of the High Court on appeal from the District Court is final unless a party obtains leave to appeal to the Court of Appeal.3 Under s 60(2) of the Senior Courts Act 2016 Ms Mills must apply to the High Court for leave to appeal. Any such application must be made to the High Court within 20 working days after delivery of the decision sought to be appealed.4

[4]    Accordingly, Ms Mills’ application ought to have been filed by 26 July 2019. It was not filed until 15 August 2019. Ms Mills explained that the delay in filing her application in the High Court was due to her mistaken belief she could file an appeal in the Court of Appeal. As well, she had not appreciated leave was required.

[5]Rule 1.19 of the High Court Rules 2016 provides:

1.19     Extending and shortening time

(1)The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just.

(2)The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed.

[6]    In Strathboss Kiwifruit Ltd v Attorney-General Mallon J held “the discretion [under r 1.19] is a wide one and involves a balancing of the competing interests to determine where the overall justice lies”.5

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

3      Senior Courts Act 2016, s 60.

4      High Court Rules 2016, r 20.22.

5      Strathboss Kiwifruit Ltd v Attorney-General [2017] NZHC 2200, referred to in Elishua v Freeland

[2019] NZHC 398.

[7]    Given Ms Mills’ attempted to file her appeal in time, albeit in the wrong court, and because she is a lay litigant, I have concluded it is in the interests of justice to grant the application to appeal out of time and to proceed to consider the merits of her application for leave to appeal.

[8]    The respondent has filed a notice of opposition to Ms Mills’ application for leave to appeal out of time and for leave to appeal. I record the respondent was not served until 16 August with Ms Mills’ application. I further record that although the respondent filed its application on 30 August 2019 it was not brought to my attention until 12 September.

[9]    The test to be met before leave is given to bring a second appeal is long established:6

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

[10]   In Waller v Hider the Court of Appeal explained the rationale for the high threshold for the grant of leave for a second appeal to the Court of Appeal:7

(a)Scarce judicial resources are not to be wasted, nor additional expense for litigants incurred, without realistic hope of benefit.

(b)The primary function of the Court on a second appeal is not general error correction but to clarify the law, and to determine whether it has been properly construed and applied by the court below.

[11]   With these principles in mind I turn to consider the merits of Mr Mills’ application for leave to appeal.

[12]   Grounds 4 to 7 of Ms Mills’ application appear under a heading “important facts and law concerning the appeal”. These grounds of appeal challenge the award of costs to the respondent in both the District Court and High Court as being made “…

6      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

7      At 413.

against the rule of law, without moral authority, and without any legal precedent or authority …” and raise the point that a court cannot grant summary judgment unless all of a plaintiff’s claims are extinguished.

[13] The challenge to the costs award is not capable of serious argument. The respondent succeeded and costs follow the event. The further point, that summary judgment was wrongly granted, is addressed at [17]–[21] below.

[14]   Next, Ms Mills raises as a ground of appeal that  the  District  Court  and High Court had “authority to reopen the  credit  contract  under  s 120  of  the  [CCCF Act]”. The decisions in both Courts are criticised for ignoring the potential under that Act to award damages in excess of limited damages under ss 88 and 89. But the ground of appeal ignores the fact no determination relating to damages has been made. The issue of the alleged breach of s 22 of the CCCF Act is expressly reserved for trial. Judge Courtney merely made observations in this regard which I quoted, and do so again:8

Ms Mills may well wish to take those comments into account in determining whether or not she wishes to pursue any sum other than the statutory damages applicable under CCCFA. Conversely, ASB may consider whether or not it is worth proceeding to hearing in an endeavour to reduce statutory damages given, as I understand it, they have already offered to pay $2500 to Ms Mills.

[15]   Grounds 10 to 11 return to an issue concerning costs. At the outset I observe that the respondent says no costs have been paid and nor has the respondent taken any steps to enforce the costs awards. In any event costs were not awarded erroneously. In the District Court, what I described as “relatively modest costs” were awarded in the respondent’s favour in the sum of $6,942 following the successful application to have all but one of the claims dismissed. I considered the costs to be within the Judge’s discretion. It was also relevant that in respect of the s 22 CCCF Act claim which remains, the Bank had offered to pay as much as Ms Mills is likely to recover under the CCCF Act.

[16]   Ms Mills’ appeal having been dismissed, the respondent was entitled to costs and the award of costs in the High Court raises no appealable point.

8      District Court decision, above n 1, at [94].

[17]   Turning to the final ground, Ms Mills argues that summary judgment was wrongly granted because her claim under s 22 of the CCCF Act remains extant. I refer to this point as the “summary judgment ground”. At first glance the summary judgment ground appears to have some merit. In the District Court the Bank applied to strike out the claims as disclosing no reasonably arguably cause of action. In the alternative it sought summary judgment.9 Under r 12.2(2) of the District Court Rules 2014, the court may give summary judgment against a plaintiff only if the defendant satisfies the court that “none of the causes of action in the plaintiff’s statement of claim can succeed”. The District Court Judge concluded that three of the “causes of action”, which he construed from the statement of claim, were not reasonably arguable:

(a)The statement of claim disclosed no “reasonably arguable cause of action based on oppressive behaviour on the part of the respondent in refusing to refinance”;10

(b)Sections 28 and 43 of the Property Law Act had “no application to the matters in issue with the ASB” and s 46 of that Act, also relied upon, was not obviously relevant to the claims against the ASB;11

(c)There was “no basis for any cause of action” under the other heads relied on in the statement of claim namely the Consumer Guarantees Act 1993 and the law of equity and the law of torts.12

[18]   In relation to an alleged breach of s 22 CCCF Act, the Judge concluded      Ms Mills had an arguable cause of action against the Bank as it had not established it had a complete legal answer to Ms Mills’ claim.13 Judge Courtney concluded ASB “is entitled to summary judgment against Ms Mills on all causes of action apart from the claim for breach of s 22 CCCFA”.  That outcome is contrary to r 12.2 because, as  Ms Mills points out, one of her causes of action is extant.

9 At [17].

10 At [79].

11     At [85]–[86].

12 At [87].

13 At [68].

[19]   Nevertheless, I do not consider the error raises a question of law of sufficient importance to justify the grant of leave to bring a second appeal to the Court of Appeal. The error in this case is more one of form than substance. I immediately acknowledge that in some contexts, the wrongful grant of summary judgment may go to jurisdiction. But in this case, the key point is that all but one of Ms Mills’ claims failed in the District Court and her appeal to the High Court was unsuccessful. Beyond the summary judgment ground, no question of law capable of bona fide argument is raised. The summary judgment ground cannot overcome the fact that  (with  the  s 22  CCCF Act exception), Ms Mills’ causes of action were not capable of argument.   Ms Mills can have no realistic hope of benefit from a second appeal.

[20]   The summary judgment ground is not, therefore, of sufficient importance to outweigh the cost and delay of a second appeal.

[21]   A further impediment to Ms Mills’ application for leave to appeal is that the summary judgment ground is raised for the first time in a second appeal context.

[22]   For the foregoing reasons the application for leave to appeal does not meet the requisite threshold for the grant of leave to bring a second appeal.

Result

[23]The application for leave to appeal out of time is granted.

[24]The application for leave to appeal is dismissed.

Karen Clark J

Solicitors:

Simpsons Grierson, Auckland for Respondent