AThe application to amend the grounds of appeal is granted, apart from the proposed amendment adding a ground of appeal about quantum.
BThe application to adduce further evidence is dismissed.
CThe appeal is dismissed.
D An order is made that an order for costs for a standard appeal on a band A basis and usual disbursements would have been made against the appellant in favour of the respondent in relation to the present appeal if s 45 of the Legal Services Act 2011 had not affected the appellant’s liability to costs.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No
Introduction  [1]
Issues  [3]
Facts  [6]
Amendment to notice of appeal  [27]
Application to adduce further evidence on appeal  [30]
Did the Associate Judge apply the wrong test
for summary judgment?  [34]
Did TEL’s pleadings cause prejudice?  [36]
Estoppel?  [42]
Breach of s 176 of the Property Law Act?  [60]
      Betros transaction  [63]
      The offer for $2.4 million  [64]
      Auctioning all six apartments  [65]
      No explanation for sale at $330,000  [67]
      Conclusion: s 176  [71]
Mortgagee in possession of unit 3H?  [73]
Breach of duty of good faith?  [81]
CCCFA oppression?  [88]
Quantum  [94]
Result  [95]
Costs  [96]

Introduction

The appellant, Ms Mitchell, guaranteed a loan made by the respondent, Trustees Executors Ltd (TEL), to a company called River Cottage Ltd, secured over two units in an apartment complex, Quattro Apartments, in Auckland. River Cottage defaulted and TEL sought summary judgment in the High Court against Ms Mitchell and her partner, Mr Richards. Mr Richards is now bankrupt. The application for summary judgment was opposed and after a hearing before Associate Judge Doogue, summary judgment was entered against Ms Mitchell for $562,059.85 plus interest at 14.7 per cent per annum from 18 March 2009 up to the date of the judgment (28 January 2010).[1] The interest amounted to $71,756.12.
[1] Trustees Executors Ltd v Richards HC Auckland CIV-2009-404-4693, 28 January 2010.
Ms Mitchell appeals to this Court against the High Court decision. She argues that the Associate Judge ought not to have entered summary judgment against her, and that the matter should have proceeded to a trial.

Issues

The issues raised by the appeal are:
(a)Did the Associate Judge adopt the wrong test for the entry of summary judgment?
(b)Did TEL’s pleadings cause unfair prejudice to the conduct of Ms Mitchell’s opposition to summary judgment?
(c)Did the Associate Judge wrongly rule that there was no loss or detriment arising from statements allegedly made by an employee of TEL, Mr Dellabarca, which Ms Mitchell argued, raised an estoppel?
(d)Was it arguable that…

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.

Continue reading Mitchell v Trustees Executors Ltd

Details

AGLC: Mitchell v Trustees Executors Ltd [2011] NZCA 519
Case: [2011] NZCA 519
Decision Date: 6 October 2011

CaseChat Overview and Summary

Shelly Anne Francis Mitchell (the appellant) appeals against a decision of the High Court of New Zealand (Associate Judge Doogue) to enter summary judgment against her and in favour of Trustees Executors Limited (the respondent). The appeal was heard by O’Regan P, Heath and MacKenzie JJ. The appellant argued that the Associate Judge should not have entered summary judgment against her and that the matter should have proceeded to trial. The appeal was dismissed. The appellant had guaranteed a loan made by the respondent to River Cottage Ltd, secured over two units in an apartment complex, Quattro Apartments, in Auckland. River Cottage defaulted and the respondent sought summary judgment against the appellant and her partner, Mr Richards. The application for summary judgment was opposed and after a hearing, summary judgment was entered against the appellant for $562,059.85 plus interest at 14.7 per cent per annum from 18 March 2009 up to the date of the judgment (28 January 2010). The interest amounted to $71,756.12. The appellant sought to amend the grounds of appeal and adduce further evidence in support of the appeal. The court held that the amendment to the notice of appeal was allowed, apart from the proposed amendment adding a ground of appeal about quantum. The application to adduce further evidence was dismissed. The court considered the issues and found that the Associate Judge had applied the correct test for summary judgment, and that there was no prejudice caused by the respondent’s pleadings. The court also found that the appellant was not able to establish an estoppel, and that the respondent had not breached its duty under s 176 of the Property Law Act or its duty of good faith. The court held that it was not arguable that the respondent had breached the oppression provisions of the Credit Contracts and Consumer Finance Act 2003. The appeal was dismissed and an order was made that an order for costs for a standard appeal on a band A basis and usual disbursements would have been made against the appellant in favour of the respondent in relation to the present appeal if s 45 of the Legal Services Act 2011 had not affected the appellant’s liability to costs.

Orders