Resimac Home Loans Limited v Crowley

[2014] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-183 [2014] NZHC 1764

BETWEEN

RESIMAC HOME LOANS LIMITED

Plaintiff

AND

KEVIN JOHN CROWLEY Defendant

Hearing:	28 July 2014
Appearances:	Ms N Edwards for plaintiff Mr Crowley in person
Judgment:	28 July 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

RESIMAC HOME LOANS LTD v CROWLEY [2014] NZHC 1764 [28 July 2014]

[1]      This matter came before me on 30 June 2014.   Although Mr Crowley the defendant had not filed any documents in opposition I agreed to hear him concerning some of the matters that he wanted to raise concerning the home loan which was the contract on which he was being sued.

[2]      Two points were made, one that a wrong date (wrong by one month) had been used for the drawdown date when calculating the amount owed.  The second point was that Mr Crowley said he didn’t know who the plaintiff Resimac Home Loans Limited was.  I gave leave to the plaintiff to file an affidavit on these points.

[3]      It has now been accepted by the plaintiff in terms of an affidavit of Ms Kernohan an employee of the plaintiff that there was in fact a mistake made about the date and the advance occurred on 24 April 2007 and not in March 2007.  She also confirmed that the calculations had now been done on the correct date.

[4]      Secondly it has now been established by further affidavit that the plaintiff was incorporated 20 July 2005 under the name NZF Mortgages Limited but on 18

April 2012 changed its name to the current version.  The change of name occurred after the defendant entered into the contract that he did with the mortgage company. I am satisfied that the circumstances in which the name change came about had been properly explained.  The fact that the company has changed its name does, not of course affect its ability to sue on the contract.

[5]      Mr Crowley said that he wished to make further enquiries into the matter which he had not had time to make, that he did not consider that the plaintiff ought to be able to “rush” its application through and that he should be given a fair hearing.

[6]      In my view Mr Crowley has had a reasonable consideration in terms of raising matters that he said he was doubtful about.   I do not consider that the key question of whether the plaintiff has properly established entitlement to liability and the  quantum  of  the  judgment  sought  are  left  in  any  doubt.    The  procedure  of summary judgment is designed to allow plaintiffs to move promptly to obtain judgment where there is no arguable legal defence available to the defendant.  While

Mr Crowley might consider that that permits a plaintiff to proceed at undue haste, that is what the law says and that is the law that I intend to apply.  There will be judgment for sum of $243,238.53 due and owing as at 24 April 2014.  As well the plaintiff is entitled to interest in the amount of $5,095.80 on the core amount at the contractual rate of 8.05% from 24 April 2014 which is 95 days at the daily rate of

$53.64.   There will also be an order that the defendant vacate and deliver up possession of the property contained in Certificate of Title SA 822/183 within 14 days of the date of this judgment.   The plaintiff is entitled to costs on a 2B basis which it has scheduled out at $7,960.00 and as well is entitled to disbursements of

$1,722.

J P Doogue

Associate Judge