Wardell v ASB Bank Limited - [2016] NZCA 497

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

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.
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.
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.
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]
[1]ASB Bank Ltd v Wardell [2015] NZHC 108.
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.
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…

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.

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Details

Case: [2016] NZCA 497
Decision Date: 12 October 2016 at 12.30 pm

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