Poasa v Lambert

[2025] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-003200 [2025] NZHC 2354

UNDER

the Credit Contracts and Consumer Finance Act 2003

IN THE MATTER OF

Breach of lender’s responsibilities

BETWEEN

ISAMAELI POASA

Plaintiff

AND

BEN LAMBERT

First Defendant

THOMAS JAMES

Second Defendant

Hearing:

18 August 2025

Appearances:

Plaintiff in person

B Pamatatau for the First and Second Defendants

Judgment:

20 August 2025

JUDGMENT OF ASSOCIATE JUDGE GELLERT

This judgment was delivered by me on 20 August 2025 at 10:00 am.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Date ………………….

Solicitors:

Bruce Pamatatau Barrister, Auckland
Martelli Yaqub Lawyers, Auckland

POASA v LAMBERT [2025] NZHC 2354 [20 August 2025]

Background

[1]    This is an application by the defendants for summary judgment against the claim filed by the plaintiff, Mr Poasa. The claim arises out of a business loan and security agreement (Agreement) entered into between Heartland Bank Ltd (Heartland)  (as  lender)  and  Jitel   Contracting   Ltd   (JCL)   (as   borrower).   The Agreement was for the purpose of financing the purchase of a 2021 Ford Ranger Wildtrak (Ranger). Mr Poasa guaranteed JCL’s obligations under the Agreement.

[2]    The first defendant, Mr Lambert, is the employee of Heartland who was dealing with the Agreement on behalf of Heartland. The second defendant, Mr James, is the director of Secure Collections & Investigations Ltd (Secure Collections), the company which was instructed by Heartland to repossess the Ranger following non- payment of amounts owed under the Agreement.

[3]    The causes of action pleaded against the defendants are set out in paragraphs 1 to 4 of the plaintiff’s statement of claim. I set them out in full below:

1. The plaintiff claims breach of contract due to the defendants’ failure to adhere to Section 9C Lenders Responsibility Principles. Several aspects of Section 9C(2)(a), Section 9C(2)(a)(i), Section 9C(3)(a)(b)(d)(e) have been breached by the Lender.

2. The plaintiff claims breach of contract due to the unlawful repossession of the ute, which violates Part 3A (Repossession of Consumer goods) of the Credit Contracts and Consumer Finance Act 2003.

3. The plaintiff claims breach of contract due to the defendant’s failure to adhere to Section 55, (Changes on grounds of Unforeseen Hardship). The defendant failed to respond and consider application section [57A].

4. The plaintiff claims breach of contract under Fair Trading Act 1986.

Facts

[4]The following facts are not disputed between the parties:

(a)The plaintiff is the sole director and shareholder of JCL.

(b)The defendants are, respectively, an employee of Heartland who is the Collections Manager in relation to JCL’s Agreement with Heartland, and the director of Secure Collections.

(c)On or about 17 September 2021, JCL entered into an agreement to purchase the Ranger from MS Ford in Haven Road, Nelson. At that time, JCL signed: an “Offer and Sale Agreement” as purchaser; an Authority to Accept Direct Debit in favour of Heartland; a Business Loan & Security Agreement as borrower; and a Declaration as to Loan Purpose, which stated that JCL acknowledged that the credit advances are “to be used primarily for business or investment purposes” and the primary purpose of the advance is “NOT for personal business or household use”. The plaintiff signed the Business Loan & Security Agreement as guarantor, and a Declaration as to Loan Purpose on the same terms as JCL.

(d)On or about 5 August 2022, the above facility was refinanced into a new facility, which is the Agreement in issue in this proceeding. Again, JCL signed the Agreement as borrower, and the plaintiff signed the Agreement as Guarantor. Heartland provided the new facility agreement to JCL under a covering letter, also attaching a repayment schedule which shows that a repayment holiday was granted by Heartland until 20 October 2022. The Agreement contains the expected terms as to repayment of the amounts borrowed, and JCL grants a security interest in the Ranger to Heartland “to secure due payment of the Secured Indebtedness”. The Agreement appears to be, in all material respects, on the same general terms as the agreement entered in September 2021. In other words, it is accepted that neither of the defendants are a party to the Agreement, which is between Heartland, JCL, and the plaintiff.

(e)On or about the time of the re-financing arrangement in August 2022, Heartland registered its security interest in the Ranger on the Personal Property Securities Register (PPSR).

(f)In or around January 2023, JCL (as borrower) and the plaintiff (as guarantor) fell into default under the Agreement. A lump sum payment was made on or about 12 July 2023, but otherwise the default was never remedied. I was informed by counsel for the defendants, Mr Pamatatau, that no payments have been made in the subsequent period, which has now been over two years since default. This was not disputed by the plaintiff.

(g)Heartland prepared notices pursuant to the Property Law Act 2007 and the Personal Property Securities Act 1999 giving notice of the default before issuing a warrant to repossess the Ranger.

(h)On or about 20 November 2024, the Ranger was repossessed by Heartland, who engaged the services of Secure Collections to undertake that process.

(i)On 25 November 2024, Manheim inspected the Ranger for Heartland (as seller) and provided a Vehicle Evaluation report which contained an estimated auction value of $30,000 – $35,000.

(j)On or about 28 November 2024, Heartland wrote to JCL and gave notice of its intention to sell the Ranger.

(k)The Ranger was, and continues to be, held by Heartland. Heartland has agreed not to sell the Ranger until determination of this proceeding, notwithstanding that it is not a party to this proceeding. Heartland did not seek to be heard in relation to the defendants’ application.

[5]    There has been some delay in this matter being heard, so I also set out the procedural steps in the proceeding for context:

(a)On 6 December 2024, the plaintiff filed his statement of claim in this proceeding.

(b)On 11 December 2024, the plaintiff applied for an interim injunction to restrain Heartland from selling the Ranger. An order to this effect was granted by Edwards J the following day, after Heartland was informed of the application and agreed not to sell the Ranger pending the outcome of this proceeding. The application was not opposed by the defendants.

(c)On 14 February 2025, the defendants filed an application for summary judgment against the plaintiff’s claim.

(d)On 20 February 2025, Associate Judge Sussock issued an order that the defendant’s application be listed in the next available summary judgment list, as well as orders for the plaintiff to file and serve a notice of opposition and any supporting affidavit evidence. On 18 March 2025, the defendant’s application was called in the summary judgment list. The plaintiff had not complied with Associate Judge Sussock’s earlier directions.  Accordingly,  the  application  was  adjourned  to 25 March 2025.

(e)On 25 March 2025, Associate Judge Brittain issued timetable directions in relation to a proposed fixture that was to take place on 30 June 2025.

(f)On 31 March 2025, the Registrar emailed the defendants’ counsel and the plaintiff providing formal notice of the proposed fixture as well as the directions made by Associate Judge Brittain.

(g)On 3 April 2025, the plaintiff wrote to the court and, in brief, said that for personal reasons he would not be able to comply with Associate Judge Brittain’s directions to file an affidavit in opposition by 4 April 2025.

(h)On 19 May 2025, the Registrar wrote to the defendants’ counsel and to the plaintiff advising of the upcoming fixture on 30 June 2025. Counsel for the defendants responded advising of the plaintiff’s non-compliance

in not filing affidavits. The Registrar asked the plaintiff if he still intended to pursue his opposition. The plaintiff confirmed that he did.

(i)The plaintiff did not file or serve any submissions or a bundle of authorities on 23 June 2025, which was in breach of Associate Judge Brittain’s timetable direction.

(j)On 25 June 2025, the Registrar wrote to the plaintiff asking if he would be filing any submissions and asking if he would be appearing at the 30 June 2025 fixture.

(k)On 26 June 2025, the plaintiff emailed the Registrar seeking an adjournment of the 30 June 2025 fixture.

(l)On 27 June 2025, Gault J granted the plaintiff’s application for an adjournment of the 30 June 2025 fixture and subsequently allocated the hearing on 18 August 2025, which proceeded as scheduled.

Legal Principles — Defendants' applications for summary judgment

[6]    Under r 12.2(2) of the High Court Rules 2016, the court may give summary judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[7]    The Court of Appeal considered the principles applicable on a defendant’s application for summary judgment in Westpac Banking Corporation v MM Kembla NZ Ltd.1 That case is authority for the following propositions:

(a)A defendant applying for summary judgment has the onus of proving the plaintiff cannot succeed. Usually, summary judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

1      Westpac Banking Corp v MM Kembla New Zealand Ltd [2001] NZLR 298 at [58]–[64].

(b)The court must be satisfied that none of the claims can succeed; it is not enough that they are shown to have weaknesses.

(c)Summary judgment will only be suitable where all the material facts are not in dispute and can be put before the court efficiently in affidavit form.

(d)The procedure may be inappropriate if the case is likely to turn on a judgment which can only be reached properly after hearing all the evidence at trial.

(e)Developing points of law may require the added context and perspective provided by a full trial.

Discussion

[8]It is necessary to determine:

(a)Whether the defendants have a complete defence to the claim that they failed to adhere to the Lender Responsibility Principles described in   s 9C of the Credit Contracts and Consumer Finance Act 2003 (CCCFA).

(b)Whether the defendants have a complete defence to the claim that they breached the Agreement due to the unlawful repossession of the Ranger, which is alleged to have been in violation of part 3A of the CCCFA.

(c)Whether the defendants have a complete defence to the claim that the defendants have failed to adhere to ss 55 and 57A of the CCCFA, which relate to applications by debtors on grounds of unforeseen hardship to request that a creditor change the terms of a consumer credit contract.

(d)Whether the defendants have a complete defence to a claim of breach of the Agreement under the Fair Trading Act 1986 (FTA).

[9]    These issues can be resolved by first determining whether either or both of the defendants are a party to the Agreement. If not, the question then is whether the defendants have any other responsibility to the plaintiff as described in the claims, either under the CCCFA or FTA.

Are the defendants a party to the Agreement?

[10]   Mr Pamatatau submits in relation to all causes of action that the defendants are not lenders as defined under the CCCFA or in trade for the purposes of the FTA. He further says that JCL and the plaintiff were in default of the agreement with Heartland for 12 months before notices were issued and repossession of the Ranger took place. Neither JCL nor the plaintiff have remedied any default, and the plaintiff made repossession of the Ranger difficult. The plaintiff discloses no valid cause of action against the defendants and fails to specifically identify how the defendants are liable to the plaintiff for any relief.

[11]   Practically, Mr Pamatatau submits that the Ranger needs to be sold and the proceeds of sale applied to the amount owed by the plaintiff to Heartland under the terms of the agreement. He says it is in the plaintiff’s interest that the debt be reduced.

[12]   I asked the plaintiff why the defendants were the parties named in this proceeding, when the issues he raises relate to the repossession of the Ranger financed in the Agreement between JCL and Heartland. He explained it was because, in his view, the defendants are Heartland’s agents and “under Heartland’s umbrella”. He further explained that he did not have much time when he initially issued the proceeding, which was for the purpose of preventing the Ranger from being sold by Heartland. Mr Poasa said his “intention was that it was all part of Heartland”.

[13]   In the notice of opposition to the defendants’ summary judgment application, Mr Poasa does not address the legal capacity of the parties, but raises two procedural matters:

(a)that the defendants’ summary judgment application was filed out of time; and

(b)the plaintiff seeks to leave to appeal the decision of Associate Judge Sussock.

[14]Both of these matters can be disposed of:

(a)In her minute dated 20 February 2025, Associate Judge Sussock found that because of irregularities in service, the defendants’ statement of defence had been filed in time. The defendants’ application for summary judgment was filed at the same time as the statement of defence and so was not out of time; and

(b)no appeal of Associate Judge Sussock’s minute has been filed and would now be significantly out of time. The plaintiff cannot now ask me to reconsider that order.

[15]   It is also relevant that under High Court Rule 12.4(3), a defendant can seek the leave of the court to file a summary judgment application after the notice of defence has been filed. The granting of leave is not to be treated as a formality and is at the discretion of the court. There are no particular guidelines for the court to consider, but in a plaintiff’s application for leave to file an application out of time, typically the court will consider the explanation for the delay, the merits of the applicant’s case, and any miscarriage of justice.2 These factors, together with any other factors specific to the particular case, would also be relevant to consider in relation to a defendant’s application.

[16]   Here, any delay in service would have been minimal, the defendants’ summary judgment application is meritorious, and any prejudice caused to the plaintiff by a late application would have been able to be rectified by allowing additional time for the filing of the plaintiff’s opposition. The plaintiff was granted various indulgences as to time which have been detailed above. Accordingly, this is a matter where it would have been appropriate to grant leave if the defendants’ application had been filed late (which it was not).

2      Tip Top Icecream Co Ltd v Polarland Ltd (2002) 7 NZBLC 103,564 at [28].

[17]   The plaintiff’s sworn evidence does not include any evidence to support the proposition that the defendants are parties to the Agreement. It is accepted that the Agreement is between JCL and Heartland, and the guarantor is the plaintiff.

[18]   It is implausible that the defendants are a party to the bank lending in their personal capacity. A company incorporated under the Companies Act 1993 is a legal entity in its own right.3 Generally, a contract entered into by a company binds the company itself and not its directors or employees, save for exceptional circumstances.4 No such exception arises in the present case.

[19]   I therefore find that the defendants are not parties to the Agreement. This is a complete defence to the plaintiff’s claims against the defendants. However, for completeness, I consider the other matters raised.

Do the defendants have any other responsibility to the plaintiff as described in the claims, either under the CCCFA or FTA?

[20]   The first three claims pleaded by the plaintiff relate to principles and obligations on a creditor arising under the CCCFA, in particular:

(a)the lender responsibility principles set out at s9C(1), with which lenders, including creditors under a consumer credit contract, must comply;

(b)the rules applying to a creditor under Part 3A as to the repossession of consumer goods under a consumer credit contract; and

(c)the obligations on a creditor under ss 55 and 57A, relating to debtor hardship applications, which fall within Part 2 of the CCCFA and apply to consumer credit contracts.

[21]   Mr Poasa alleged a failure by the defendants to adhere to these obligations. He sets out various factual matters which I address separately below. However, those

3      Companies Act 1993, s 15.

4      See Morison’s Company Law (online ed, LexisNexis) at [3.4].

matters do not need to be considered in detail because, simply put, the defendants are not a creditor as defined under the CCCFA.

[22]   At s 5 of the CCCFA, a “creditor” is defined to mean, among other things, “a person who provides, or may provide, credit under a credit contract”. It is Heartland that is the creditor under the Agreement as defined in the CCCFA. It is undisputed that it is the entity which advanced funds to JCL. That is an appropriate position for the parties to take because Heartland is the Lender as defined in the Agreement and is the entity to whom the loan repayments were to be made under the direct debit authority.

[23]   Because the defendants are not the “creditor” under the Agreement, the CCCFA does not apply to them. Conversely, because Heartland is the creditor under the terms of the Agreement, it follows that only Heartland is capable of having obligations pursuant to the CCCFA. This means that no claims under the CCCFA can arise against either of the defendants. It is also relevant that JCL, not Mr Poasa, is the debtor under the Agreement.

[24]   For the avoidance of doubt, the finding above does not mean that Heartland has been in breach of the obligations identified by Mr Poasa. Heartland’s liability is not the subject of this proceeding. It is not a party.

[25]   Equally, the FTA is not applicable to the facts in this case because there is no relevant relationship between the defendants and the plaintiff. Mr Poasa did not make any specific submissions as to how the defendants were liable to him under the FTA. But, for example, for the plaintiff to establish that the defendants breached s 9 of the FTA, he would need to show that the defendants’ conduct “in trade” was misleading or deceptive or likely to mislead or deceive him. There is no evidence of any such  “in trade” relationship between the plaintiff and the defendants. The relationship arising on these facts is the contractual arrangement between Heartland, JCL, and the plaintiff (as a guarantor).

[26]   Finally, the plaintiff referred to the following matters in support of his defence to the application:

The timing of the PPSR registration

[27]   Mr Poasa referred to Heartland registering its financing statement on the PPSR in or about August 2022, when the relevant Agreement was entered into. He says that this registration should have occurred when the initial agreement was entered into between Heartland, JCL, and himself in or about September 2021, and that the registration in 2022 was not timely. This delay, he says, “undermines priority rights and could render the interest void against certain insolvency claims”.

[28]   Heartland’s Post-Possession Notice dated 27 November 2024 does not identify any other secured creditor with an interest in the Ranger. Moreover, the security interest was granted by JCL to Heartland, and so a complaint (if any) relating to late registration of the security interest lies against the bank and not the defendants.

The service of the notices issued by Heartland under ss 128 and 132 of the Property Law Act 2007 on JCL and the plaintiff (PLA Notices)

[29]   Mr Poasa says he was not served with the PLA Notices, and that they were not uploaded to the Heartland Bank Customer Portal where he received other notices relating to non-payment and also repossession warning notices in relation to another vehicle.

[30]   Mr Pamatatau submitted that Heartland’s evidence was that it served the PLA Notices on JCL and the plaintiff by post, which was in accordance with the agreed methods of service in the Agreement. Service could not have been via the portal as that would not have been valid service.

[31]   Whether or not service was properly effected by Heartland is not a matter which can be properly raised in this proceeding. As the defendants are not parties to the Agreement, neither defendant was responsible for service of the PLA Notices, which was instead an obligation on Heartland.

Loan classification

[32]   Mr Poasa has sworn evidence that the Ranger was purchased for personal and household purposes, and that this was explained to the salesperson at MS Ford in

Nelson when the vehicle was purchased in 2021. He says that the loan was “mischaracterised as a business loan without proper disclosure or informed consent”. He explained at the hearing that he only realised that this meant he lost the benefit of consumer protection after the Ranger was repossessed in November 2024 and he studied the legal position at that time.

[33]   However, this issue does not raise any claim against the defendants. There is no evidence that they were involved in any way in Mr Poasa’s dealings with MS Ford and Heartland at the time of the initial purchase of the Ranger.

His engagement with Heartland

[34]   Mr Poasa said he has never run away from his obligations to Heartland and made a hardship application two months prior to the repossession of the Ranger. He points to inconsistent evidence from Heartland regarding this matter: that Heartland first said in evidence that it did not receive a hardship application; and subsequently Heartland said that an application could not have been made in any event because the Agreement was not a consumer loan.

[35]   As above, this is not an issue that raises any claim against the defendants. Only a creditor under the CCCFA has any obligations in relation to a hardship application, as set out in s 57A of the CCCFA. As the defendants are not parties to the Agreement, this is not a claim that can be raised with them.

[36]   Even assuming that the CCCFA hardship criteria have been met and so an application can be made by a debtor under the CCCFA, a creditor is not obliged to grant a hardship application.5 In this case, even if the Agreement was a consumer credit contract (in relation to which I do not make a finding and note that is inconsistent with the declarations signed by JCL and Mr Poasa in 2021) it does not appear that an application could have been in this case. That is because a hardship application cannot be made where the debtor has failed to make 4 or more consecutive periodic payments

5      The obligations at s 57A(1)(c)(iii) of the CCCFA include that if the creditor does not agree to change the consumer credit contract in accordance with the application, the creditor must within 20 working days of receipt of an application, give written notice to the debtor setting out the creditor’s clear reasons and a clear summary of the debtor’s rights under s 58.

by or on the due date, or where the debtor has been in default for 2 months or more. 6 There is an exception if the default has been remedied by the debtor, which is not the case here.

Repossession conduct

[37]   Mr Poasa set out in some detail the events that took place on the day of the repossession. Mr James also gave evidence as to the events on 20 November 2024. There was a long series of activities which included the presence of the Police from time to time, although it ultimately concluded with the Ranger being voluntarily handed over to Secure Collections by Mr Poasa. Mr Poasa says that when he considered the totality of the involvement of the Police it appeared to him to be a criminal operation, and not merely a civil repossession of a vehicle. He submits that the different views as to the events of that day are disputes of fact which should be resolved at trial.

[38]   Mr Pamatatau submitted that the repossession of the vehicle was purely a matter carried out by Heartland because there were long standing arrears, and the Ranger needs to be sold to assist in paying down the amounts owed.

[39]   Again, this is not a matter which raises a claim against the defendants in their personal capacities. It is instead, at least, a complaint about Heartland’s enforcement processes.

[40]   For the reasons set out above in relation to each issue, none of these matters raise an arguable claim against the defendants.

Result

[41]   Accordingly, the defendants have established that none of the causes of action in the plaintiff’s claim can succeed. There are no material factual disputes nor any issues as to credibility which are relevant to the determination of plaintiff’s claim. the defendants’ application for summary judgment is granted.

6      Section 57(1)(a) of the CCCFA.

[42]   The defendants are entitled to costs. I explained to Mr Poasa that costs would be awarded to the party that was successful, and that typically the amount of costs would be in accordance with the scale set out in the High Court Rules.

[43]   Mr Pamatatau seeks costs on a 2B basis with disbursements as fixed by the Registrar. However, I record that the defendants’ wasted costs application for $4,541 in relation to preparing the written submissions filed 16 June 2025 and memorandum of counsel dated 27 June 2025 remains to be determined on the papers by Gault J. Accordingly, those steps are not to be included within any order for costs granted in relation to this application.

[44]   Mr Poasa asked that he be permitted to file a memorandum as to the amount of costs to be awarded. I have agreed and so I do not make a final order as to costs. However to assist the parties, my preliminary view is Mr Pamatatau is correct and that costs on a category 2B basis is appropriate in this case.

[45]   The defendants are to file a memorandum setting out the amount of costs claimed within 3 working days. Mr Poasa is to file his memorandum in response within a further 5 working days. The parties’ costs memoranda are to be no more than 3 pages, excluding schedules or attachments.

[46]   Finally, I commend Mr Poasa on his clear evidence, written submissions, and appropriate conduct in the courtroom.

Associate Judge Gellert