Wardell v ASB Bank Ltd - [2015] NZCA 344

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/2015
[2015] NZCA 344

BETWEEN	AMANDA JOSEPHINE WARDELL Applicant
AND	ASB BANK LIMITED Respondent

Hearing:	27 July 2015
Court:	Ellen France P, Randerson and Miller JJ
Counsel:	Applicant in Person (with Mr Thow as McKenzie Friend) N F D Moffatt for Respondent (by AVL)
Judgment:	31 July 2015 at 11:30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the appeal is granted.
BTime is extended to the date of service of a copy of the notice of appeal on the respondent’s solicitors.
CThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Background

On 5 February 2015 Associate Judge Osborne entered judgment in the High Court against the applicant Ms Wardell in the sum of $362,009.51 together with interest and costs.[1] The judgment was entered after Ms Wardell failed to appear at the first call of a summary judgment application filed against her by the respondent (the ASB) in respect of sums said to be outstanding on loans secured by a mortgage registered over a property in Ms Wardell’s name.
[1]ASB Bank Ltd v Wardell [2015] NZHC 108.
Ms Wardell had not filed any documents in opposition to the application for summary judgment but had asked an Australian lawyer to seek an adjournment. An informal request by the lawyer’s associate Ms Woodward for an adjournment was made to the High Court by email on 30 January 2015. Associate Judge Osborne issued a minute on 2 February 2015 in which he noted there was no application before the Court for an adjournment other than the informal email. The minute confirmed that the summary judgment application would be called on 4 February 2015 as listed. The Registry was directed to email a copy of the minute to the foreign based lawyer and to another email address which Ms Wardell accepted before us was the email address of her husband. Ms Wardell confirmed she was living at the same address as her husband.
Ms Wardell did not give a clear answer to our questions about whether she received the minute of 2 February before the hearing on 4 February. She confirmed she was aware this was the date of the first call of the application. She said she did not appear because she thought her lawyer was seeking an adjournment. We note however that in Ms Woodward’s email to the Court of 30 January she said the advice given to Mr Thow was that he should attend the Court and apply for an adjournment. Ms Woodward said in her email to the Court that Mr Thow had just telephoned from the Court to say that a Registrar had refused to deal with him. Ms Woodward understood Mr Thow was still in the Court precincts when she sent the email and asked that her memorandum of advice to Mr Thow and Ms Wardell (which she attached to her email) be filed and drawn…

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 Wardell v ASB Bank Ltd 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: [2015] NZCA 344
Decision Date: 31 July 2015 at 11:30 am

CaseChat Overview and Summary

In Wardell v ASB Bank Ltd, the Court of Appeal of New Zealand considered an application by Ms. Amanda Wardell to extend the time in which to appeal a summary judgment entered against her in the High Court. The appeal was filed within the statutory time limit, but Ms. Wardell had failed to serve a copy of the notice of appeal on the respondent, ASB Bank Limited, within the required 20 working days. Ms. Wardell sought an extension of time to remedy this omission, arguing that the delay was due to her ignorance of the relevant procedural rules. The ASB Bank opposed the application, arguing that the appeal had no merit and that Ms. Wardell should have sought to set aside the judgment under the High Court Rules.

The court considered the application under the principles governing extensions of time to appeal. It noted that the delay in serving the notice of appeal was a technical default and that no prejudice had been caused to the ASB Bank. The court also found that there may be arguable grounds to resist the quantum of the judgment, but that Ms. Wardell had not provided any affidavit evidence to support her proposed grounds of appeal. Given that Ms. Wardell had promptly served the notice of appeal when the error was brought to her attention, the court concluded that the interests of justice lay in granting the extension of time. However, the court suggested that Ms. Wardell's better course of action might be to apply to the High Court to set aside the judgment and to seek appropriate legal advice before proceeding further.

The court granted the application for an extension of time, extending the time to the date of service of a copy of the notice of appeal on the ASB Bank's solicitors. There was no order for costs as Ms. Wardell appeared in person.

Orders