TSB Bank Ltd v Burgess - [2013] NZHC 1228

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-009-002978 [2013] NZHC 1228

BETWEEN TSB BANK LIMITED Plaintiff

AND

GARY OWEN BURGESS Defendant

AND

SUSAN NATALIE BEAVEN Third Party

Hearing: 13 and 14 May 2013

Appearances:

N R W Davidson QC for Plaintiff/Respondent
G O Burgess as Defendant/Applicant on his own behalf
A M Corry for S N Beaven (excused in relation to this matter)

Judgment:

28 May 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[as to defendant’s application for further and better discovery and plaintiff ’s
application for an order setting aside third party notice]

[1] In this judgment, I deal with two interlocutory applications, one by the defendant for further and better discovery and one by the plaintiff for an order setting aside a third party notice issued by the defendant.

[2] Out of the same hearing, I have previously issued a judgment relating to two further applications.1

What the plaintiff ’s case is about

[3] The plaintiff (“the bank”) lent money to the defendant (“Mr Burgess”) in

2008. It says that it subsequently suffered a short-fall of repayment after having sold

1 TSB Bank Ltd v Burgess [2013] NZHC 1070.

TSB BANK LIMITED v BURGESS [2013] NZHC 1228 [28 May 2013]

a secured property by mortgagee sale. The bank claims a short-fall at 20 October

2010 of $22,909.77. In addition, the bank claims continuing interest and expenses.

[4] Mr Burgess defends the claim mainly on the basis that the bank unlawfully proceeded with the mortgagee sale. He says it failed to give a compliant notice under s 119 Property Law Act 2007. Mr Burgess also counterclaims for various heads of special and general damages. The quantified aspects of his claim total
$395,000. The bank had initially issued this proceeding against Mr Burgess in the District Court, but obtained an order to transfer the proceeding to this Court when Mr Burgess served his counterclaim.

[5] The proceeding is being prepared for setting down for trial in relation to only the bank’s claim at present. This arises because of a stay agreed between the parties. The stay is the subject of a consent order made on 17 May 2012. On that date, the bank’s application for security for the costs on Mr Burgess’s counterclaim was to have been heard but Mr Burgess came to an agreement with the bank. As a result, the security for costs application was adjourned. Instead, the Court ordered by consent that the counterclaim be stayed until further order of the Court, to be made after determination of the bank’s claim.

[6] Mr Burgess has joined as a third party in the proceeding his former wife (Ms Beaven). He did so without leave, pursuant to r 4.4(2)(a) High Court Rules. I will return to the detail of the third party claim, which is the subject of the second application to be dealt with in this judgment.

First application – further and better discovery by plaintiff

The application

[7] The focus of Mr Burgess’s application concerns…

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 TSB Bank Ltd v Burgess 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 1228
Decision Date: 28 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, TSB Bank Limited (the bank) has commenced proceedings against Gary Owen Burgess (Mr Burgess) for a shortfall in repayment of a loan following a mortgagee sale of a secured property. Mr Burgess has defended the claim on the basis that the bank unlawfully proceeded with the mortgagee sale. He has counterclaimed for special and general damages. The bank has applied for an order setting aside a third party notice served by Mr Burgess against his former wife, Susan Natalie Beaven (Ms Beaven). Mr Burgess has applied for further and better discovery from the bank. The bank claims privilege over certain documents, which Mr Burgess challenges. The bank's application to set aside the third party notice is based on the exclusive jurisdiction of the Family Court, res judicata, and the lack of connection between the claims. The court finds that the third party notice should be set aside due to the lack of close connection between the claims, the escalation of issues, the risk of inconsistent results, and the overall interests of justice. The court also directs the bank to provide more specific information about the privileged documents. The bank is awarded costs for the setting aside application, while no costs are ordered for the discovery application.

Orders