ASB BANK LIMITED V STEVENS & Anor HC AK CIV-2011-404-1621

ASB BANK LIMITED V STEVENS & Anor HC AK CIV-2011-404-1621

Contemporaneous written terms and documents contradict the defendant's account and the facility expressly required written signed amendments; the alleged misrepresentation and implied term are inconsistent with express clause 17.1 (set-off) and cl 23.4 (written amendments); the Stanmore Bay mortgagee sale procedures...

Source-derived case information.

Citation
openlaw-4967f551_fa81_4bbb_af24_5ee33bdda32b.pdf
Parties
Plaintiff: ASB Bank Limited; First Defendant: Gavin Ray Stevens; Second Defendant: Russell Desmond Dye
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 November 2011
Procedural Posture
Commercial Debt Recovery / Summary Judgment / Summary Judgment Application (judgment Delivered)
Outcome
Judgment for plaintiff; summary judgment granted on plaintiff's claim. Plaintiff's separate application for summary judgment on the defendants' counterclaim dismissed.
Legal Topics
Summary Judgment, Set Off, Misrepresentation, Implied Term, Mortgagee Sale, Property Law Act S176, Credit Contracts and Consumer Finance Act, No Set Off Clause, Variation of Contract, Facility Agreement
Contract Law Property Law Consumer Credit / Finance Law Civil Procedure Equity Summary Judgment Set Off Misrepresentation +7 more

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Parties

ASB Bank Limited

Plaintiff

Gavin Ray Stevens

First Defendant

Russell Desmond Dye

Second Defendant

Procedural Posture

Commercial Debt Recovery / Summary Judgment / Summary Judgment Application (judgment Delivered)

Legal Issues

  1. 1 Whether an oral variation or collateral contract was made to the facility agreement
  2. 2 Whether the bank misrepresented how sale proceeds would be applied
  3. 3 Whether an implied term requiring the bank to act in a commercially sensible way arose

Ratio Decidendi

Contemporaneous written terms and documents contradict the defendant's account and the facility expressly required written signed amendments; the alleged misrepresentation and implied term are inconsistent with express clause 17.1 (set-off) and cl 23.4 (written amendments); the Stanmore Bay mortgagee sale procedures were reasonable in the market conditions and s176 breach was not arguable; loans were commercial so CCCFA did not apply; the contractual no-set-off clause bars the defendant's set-offs/ counterclaims, and therefore summary judgment for the plaintiff was appropriate on the claim though the plaintiff's application to summarily dispose of the counterclaim was dismissed.

Court Disposition

Judgment for plaintiff; summary judgment granted on plaintiff's claim. Plaintiff's separate application for summary judgment on the defendants' counterclaim dismissed.

Orders

  • Judgment for plaintiff as sought in statement of claim
  • Costs to be conferred; parties to confer and if unable to agree plaintiff to file memorandum within 21 days and defendants to file memorandum within 14 days thereafter