Oxford Finance Limited v Miller

[2022] NZHC 3349

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-71

[2022] NZHC 3349

BETWEEN

OXFORD FINANCE LIMITED

Applicant

AND

DANIEL IVO MILLER

Respondent

Hearing:	12 December 2022 (By way of telephone conference)
Appearances:	A J Steel for Applicant Respondent in person
Judgment:	12 December 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 December 2022 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

OXFORD FINANCE LIMITED v MILLER [2022] NZHC 3349 [12 December 2022]

[1]    On 24 November 2022 I made an interim order on a without notice basis, maintaining the registration of financing statement number FB24ASK83Z86U739 on the Personal Property Securities Register (the Register) under further order of the Court.

[2]    The application was made in response to receiving a financing change statement from the respondent seeking to remove the applicant’s financing statement from the Register on the ground that all of the obligations under the security agreement to which the financing statement related had been performed.1

[3]    I directed the applicant to serve the respondent with the documents comprising the  application  as  well  as  the  sealed  order  and  a  copy  of  my  minute  dated  24 November 2022. The application was to be set down for a first call by way of telephone conference on 12 December 2022. I directed the respondent to file and serve any opposition to the application prior to the telephone conference. I warned if no opposition was filed by that date, the interim order could be made final at the telephone conference.

[4]    The respondent, Mr Miller, was served with the application as directed.  On  1 December 2022, he filed an affidavit in support of his change demand which sought to remove the relevant financing statement from the Register. Mr Miller’s affidavit was not accompanied by a notice of opposition, nor was it served on the applicant until approximately 2 pm on 9 December 2022. The affidavit also does not explain how Mr Miller has discharged all his obligations. Indeed, there is no dispute that almost all the borrowed funds are still owing. The affidavit of Jason Edward Smith in support of the application for an order maintaining registration of the financing statement confirmed that Mr Miller was indebted to Oxford for at least $46,919.17, pursuant to a credit agreement with Oxford signed on 11 October 2022 to purchase a 2019 Nissan Navara utility vehicle. Thus, there is nothing in the affidavit to support the suggestion that the obligations which the financing statement secures have been performed.

[5]    The affidavit instead says that the financing statement should be discharged because it does not “coincide” with the respondent’s own registration on the Register

1      Personal Property Securities Act 1999, s 162(a).

on 17 July 2022. The affidavit also annexes a financing statement apparently registered under the US Uniform Commercial Code, although its relevance is not apparent. As the applicant says, it is not clear what is meant by “coincide” or why this means the respondent’s obligations to the applicant are discharged. The financing statement which the respondent annexes to his affidavit concerns chattel papers and documents of title rather than any interest in the motor vehicle which is the subject of the applicant’s financing statement.

[6]    I am satisfied that there is nothing in the affidavit which could constitute a valid ground of opposition to the maintenance of the registration of the financing statement, and there is no reason to extend a further opportunity to the respondent to file a formal notice of opposition.

Costs

[7]The applicant also seeks costs in the amount of $6,371 plus disbursements of

$1,235. These constitute indemnity costs pursuant to Clause 7.1 of the loan and security agreement under which the respondent agreed to “indemnify [Oxford] against all costs, losses and expenses incurred by [Oxford] in relation to [the] agreement and in exercising any of [its] rights … (including any …. legal or recovery costs in relation to any Property) … or the exercise by [Oxford] of any right under [“the] Agreement”.

[8]    Mr Miller was clearly put on notice that if he proceeded with his application to remove the financing statement from the register without a legitimate basis for doing so, such costs would be sought. Costs were also discussed at the telephone conference. Nothing was raised which would displace the applicant’s contractual entitlement to seek indemnity costs. Consequently, I am satisfied that it is appropriate to order such costs.

[9]Accordingly, I order:

(a)Registration of financing statement under number FB24ASK83Z86U739 be maintained on the Personal Property Securities Register;

(b)The respondent is to pay the applicant’s costs in the amount of $6,371, plus disbursements of $1,235.

Solicitors:

Paul Davies Law, Auckland Copy to respondent.