Southern Receivables Limited v Arambasic - [2013] NZHC 2157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1373 [2013] NZHC 2157

BETWEEN SOUTHERN RECEIVABLES LIMITED Plaintiff

AND

ODISEJ ARAMBAŠIĆ
Defendant

Hearing: 19 August 2013

Appearances:

S M Dwight for Plaintiff
Odisej Arambašić, Defendant in person

Judgment:

19 August 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Cavell Leitch, Addington Christchurch, for Plaintiff
Odisej Arambašić, Auckland, Defendant

SOUTHERN RECEIVABLES LIMITED v ARAMBAŠIĆ [2013] NZHC 2157 [19 August 2013]

[1] In this proceeding Southern Receivables Ltd is suing Mr Arambašić for

$31,443.94 plus interest, as the amount payable by Mr Arambašić for his ANZ Visa Gold credit card debt. Southern Receivables Ltd is suing as assignee of the debt. It has applied for summary judgment.

[2] The matters to be considered are these:

(a)
The application by Mr Arambašić for an adjournment at the start of

the hearing;

(b)

A procedural question – whether the ANZ Bank as assignor should be added as a party to the proceeding;

(c)

Whether the fact that Southern Receivables Ltd sued Mr Arambašić

twice in the District Court gives him any defence to the present

proceeding;

(d)

Whether the complaint by Mr Arambašić that a process-server, when

serving an earlier District Court proceeding, assaulted his son gives him a defence in this proceeding; and

(e)

The merits of the case, in particular the defences raised by Mr

Arambašić on the merits that there is no contractual relationship

between him and Southern Receivables Ltd and that Southern

Receivables Ltd has not adequately proved its claim.

[3]

The

case for Southern Receivables Ltd is that in May 2000 Mr Arambašić

applied to the ANZ for a Visa Gold credit card. It says that the bank issued him with a credit card, subject to a credit limit of $28,000. It was also subject to the bank’s standard conditions for the operation of its Visa Gold credit card which included terms as to minimum monthly payments, paying over-limit amounts, and the right of the bank to charge fees and interest in the event of a default.

[4] Southern Receivables Ltd’s evidence is that the last payment Mr Arambašić made on the credit card account was in August 2009. On 26 May 2010 the outstanding balance owed on the credit card was $31,443.94. Interest is said to have accrued on that sum at 19.95 per cent per annum.

[5] Southern Receivables Ltd also says that in November 2009 the bank entered into an agreement with Receivables Management (NZ) Ltd (which I understand to be the holding company for Southern Receivables Ltd) and with Southern Receivables Ltd under which debts owed to the bank would be assigned. I shall refer to some of the terms of the agreement later. For present it is enough to say that the agreement provided for ANZ to nominate debts for assignment and on payment of a price to the bank, a debt was assigned to Southern Receivables Ltd. Southern Receivables Ltd says that the debt for Mr Arambašić was assigned to it on…

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.

Keep reading for free

Create a free CaseChat account to read Southern Receivables Limited v Arambasic and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 2157
Decision Date: 19 August 2013

CaseChat Overview and Summary

In this proceeding Southern Receivables Limited is suing Mr Odisej Arambašić for the sum of $31,443.94 plus interest for the debt owed on a credit card issued by ANZ Bank Ltd. Southern Receivables Limited is suing as assignee of the debt. The court was required to decide on several issues: whether the ANZ Bank needed to be joined as a party, whether the earlier proceedings brought by Southern Receivables Limited in the District Court were a bar to the present proceeding, whether the actions of a process-server in an earlier proceeding provided a defence to this proceeding, and whether there was any defence on the merits. The court found that the ANZ Bank need not be joined as a party, that the earlier proceedings were not a bar to the present proceeding, that the actions of the process-server did not provide a defence to this proceeding, and that there was no defence on the merits. The court granted judgment for Southern Receivables Limited for the amount claimed, plus interest at the contractual rate down to the date of judgment. The court also reduced the costs that would otherwise be awarded on the District Court scale by 50 per cent to mark its disapproval of the plaintiff having sued for $31,400 in this court.

Orders