Mills v ASB Bank Ltd - [2019] NZHC 1505

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2018-441-78

[2019] NZHC 1505

UNDER THE Credit Contracts and Consumer Finance Act 2003

IN THE MATTER

Statutory breaches by the ASB Bank, lack of due care, and oppressive conduct

BETWEEN

LYNETTE JOY MILLS

Appellant

AND

THE ASB BANK LIMITED

Respondent

Hearing: 4 December 2018

Appearances:

Appellant in Person

B J Upton and S L Hawksworth for Respondent

Judgment:

28 June 2019

JUDGMENT OF CLARK J

Introduction

[1] The plaintiffs, Lynette Mills and Carl Peterson, sued ASB Bank Ltd (ASB or the bank) for losses caused to them, they claimed, by various defaults on the part of ASB.

[2] All of Mr Peterson’s claims were struck out as disclosing no reasonably arguable cause of action.1 In addition ASB was granted summary judgment against Ms Mills in respect of all of her causes of action except for a claim of breach of s 22

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

MILLS v THE ASB BANK LIMITED [2019] NZHC 1505 [28 June 2019]

of the Credit Contracts and Consumer Finance Act 2003 (the Act).2 ASB was awarded costs. Ms Mills appeals the outcome in the District Court. Mr Peterson does not.

Background

[3] Ms Mills and her former husband Mr Mills had been longstanding customers of ASB. They had a facility agreement with the bank under which it agreed to provide them with a revolving credit facility to a limit of $50,000 on their Orbit home loan account.

[4] As joint account holders Mr and Ms Mills each had a mandate to operate the account independently of the other. Without the knowledge of the other each could, for example, withdraw all the money in the account, end a service or apply for an overdraft.

[5] The couple separated. At the time the relationship ended they owned two properties, which were subject to mortgage to ASB.

[6] Ms Mills entered into a relationship with Mr Peterson and in May 2015 Ms Mills, Mr Peterson and Mr Mills agreed to an arrangement whereby Mr Mills would assign his interest in the two properties to Mr Peterson. In consideration Mr Peterson would pay Mr Mills $100,000 in two instalments of $50,000, one in May 2015 and the second on or before 31 May 2016. Mr Peterson would assume Mr Mills’ responsibility to ASB under the mortgages and the Orbit account.3

[7] On 19 May 2015, Ms Mills and Mr Peterson met with Chenee Cotton, a customer services supervisor with the bank. Although she had no previous dealings with Mr Peterson, Ms Cotton’s review of the bank’s files prior to the meeting revealed he was a former customer of the bank.

[8] Mr Peterson explained to Ms Cotton that he was Ms Mills’ partner and that he was entering into an agreement with her former husband under which Mr Peterson would purchase Mr Mills’ share of their relationship property. Mr Peterson explained

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 1505
Decision Date: 28 June 2019

CaseChat Overview and Summary

The appeal was brought by Lynette Mills against the decision of Judge Courtney of the District Court, who had dismissed her claims against ASB Bank Limited. ASB had made an application for summary judgment which the District Court granted in part, and also made an application for the striking out of all of Carl Peterson’s claims, which the District Court also granted. Ms Mills’ appeal was against the costs order made in favour of ASB and the dismissal of her claims for oppressive conduct under the Act. Mr Peterson did not appeal the District Court decision. The appeal was heard by Clark J. The central issue was whether the District Court was correct in finding that ASB had not engaged in oppressive conduct. The court found that there was no oppressive conduct. The appeal was dismissed with costs.

Orders