Wardell v ASB Bank Limited

Link copied
Case Copied 8 min read

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/2015
[2016] NZCA 497

BETWEEN

AMANDA JOSEPHINE WARDELL
Appellant

AND

ASB BANK LIMITED
Respondent

Hearing:

3 October 2016

Court:

Harrison, Asher and Brown JJ

Counsel:

Appellant in person
N F D Moffatt for Respondent

Judgment:

12 October 2016 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal is declined.

B        The appeal is deemed abandoned.

C        There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

  1. Amanda Wardell applies for an extension of time to file a case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) and an extension of time to file affidavits in support of the appeal.  The respondent, ASB Bank Ltd (ASB) applies for Ms Wardell’s appeal to be dismissed with costs.  Ms Wardell is self-represented.

  2. The application arises out of the ASB’s enforcement of two loans to Ms Wardell totalling $950,200.00.  She defaulted and there was a mortgagee sale.  Following this the ASB applied for summary judgment against Ms Wardell for the balance it claimed was still owed of $336,313.76.

  3. Ms Wardell filed no notice of opposition or other document claiming a defence.  The matter came before Associate Judge Osborne for formal proof on 5 February 2015.  Prior to that Ms Wardell had asked an Australian lawyer to seek an adjournment.  The lawyer’s associate made an informal request for an adjournment by email on 30 January 2015, attaching a copy of a “memorandum of advice given to Mr Brendan Thow” (Ms Wardell’s husband).  Associate Judge Osborne issued a minute on 2 February 2015 noting that Mr Thow was not a party to the proceedings and there had been no formal application for an adjournment.  A minute was sent to Ms Wardell’s email address prior to 5 February 2015.  She claimed she did not receive the minute.

  4. On 5 February 2015 Associate Judge Osborne ordered summary judgment against Ms Wardell who had not appeared.  He found there was no defence to ASB’s claim for the shortfall on the loans and entered judgment for $362,009.51 with interest, costs and disbursements.[1]

  5. Ms Wardell filed a notice of appeal on 5 March 2015.  Since then the matter has had considerable history in this Court.  Ms Wardell in her submissions has claimed that the property that was sold at mortgagee sale had initially been purchased by her and her husband and then transferred into her name.  Part of the debt was $90,000 raised for Mr Thow’s helicopter companies.  This increase in mortgage was not documented or signed by her, and the claim for that $90,000 should have been against her husband’s companies and not against her personally.

  6. However, despite this assertion, Ms Wardell has filed no affidavits setting out any defence on this basis or any other basis, and has persistently defaulted in her obligations to file a case…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Wardell v ASB Bank Limited 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
[2016] NZCA 497
Decision Date

CaseChat Overview and Summary

Wardell v ASB Bank Limited is an appeal case originating from a summary judgment entered against Amanda Wardell for the balance of two loans amounting to $950,200.00. The loans defaulted, leading to a mortgagee sale and a subsequent application by ASB Bank Limited for summary judgment against Wardell for the balance of $336,313.76. Wardell filed no notice of opposition or other document claiming a defence, resulting in summary judgment being entered against her. Wardell filed a notice of appeal on 5 March 2015, but the appeal has faced considerable procedural delays and defaults on Wardell's part. The primary legal issue before the Court of Appeal was whether the appeal could be extended beyond the deadlines set out in the Court of Appeal (Civil) Rules 2005, and if not, whether the appeal should be dismissed. The Court held that the appeal was abandoned due to Wardell's failure to comply with the procedural timelines and her persistent defaults in filing a case on appeal and affidavits in support of her appeal. The Court further held that even if the appeal was not deemed abandoned, it would have been dismissed due to the unexplained delays and lack of a defence. The Court declined to grant an extension of time to file the case on appeal, deemed the appeal abandoned, and made no order for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.