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…

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.

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Details

Case: [2019] NZHC 2383
Decision Date: 20 September 2019

CaseChat Overview and Summary

Lynette Joy Mills brought an appeal against the ASB Bank Ltd in the High Court of New Zealand, following a District Court decision that dismissed her claims. Mills sought to challenge the District Court's decision that granted summary judgment to the ASB Bank Ltd, except for a claim for breach of s 22 of the Credit Contracts and Consumer Finance Act 2003. The High Court had previously dismissed Mills' appeal, and she now seeks leave to appeal to the Court of Appeal.

The court considered the principles applicable to second appeals and whether the appeal met the requisite threshold for the grant of leave to bring a second appeal. The court noted that the discretion under r 1.19 of the High Court Rules 2016 is a wide one and involves a balancing of the competing interests to determine where the overall justice lies. The court also considered the grounds of appeal raised by Mills, including the award of costs and the grant of summary judgment.

The court held that Mills' application for leave to appeal out of time was granted, but the application for leave to appeal was dismissed. The court held that the grounds of appeal raised by Mills were not capable of serious argument and did not meet the requisite threshold for the grant of leave to bring a second appeal. The court also held that the summary judgment ground was raised for the first time in a second appeal context and was not of sufficient importance to outweigh the cost and delay of a second appeal.

In conclusion, the court dismissed Mills' application for leave to appeal to the Court of Appeal. The court held that the application did not meet the requisite threshold for the grant of leave to bring a second appeal, and there was no realistic hope of benefit from a second appeal. The court acknowledged that the discretion under r 1.19 of the High Court Rules 2016 is a wide one, but in this case, the overall justice lay in dismissing the application for leave to appeal.

Orders