COMMERCE COMMISSION V BLUESTONE MORTGAGES NZ LIMITED AND ORS HC AK CIV-2009-409-617

COMMERCE COMMISSION V BLUESTONE MORTGAGES NZ LIMITED AND ORS HC AK CIV-2009-409-617

The defendants' interlocutory applications were refused because the issues raised—characterisation of the DEF, reasonableness under the Act, the impact of securitisation on recoverable costs, and expert conflicts—raise substantial questions of fact and complex mixed law and fact that are not suitable for...

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Citation
openlaw-4c94b11c_bfdf_406d_ac2e_8056a0f1129d.pdf
Parties
Plaintiff (respondent): Commerce Commission; First Defendant (applicant): Bluestone Mortgages NZ Limited; Second Defendant (applicant): Trustees Executors Limited; Third Defendant (applicant): TEA Custodians (Bluestone) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 October 2010
Procedural Posture
Civil Enforcement Proceeding Under Credit Contracts and Consumer Finance Act 2003 / Interlocutory: Application for Summary Judgment, Strike Out and Leave to Bring Application Out of Time
Outcome
Defendants' application to strike out refused; application for leave to bring summary judgment out of time refused; summary judgment application would have been refused; pending interlocutory applications adjourned; timetable directions ordered.
Legal Topics
Deferred Establishment Fee, Prepayment Fee, Unreasonable Fees, Statutory Interpretation, Summary Judgment, Strike Out
Consumer Credit Law Contract Law Commercial Law Securitisation and Finance Law Procedural Law Deferred Establishment Fee Prepayment Fee Unreasonable Fees +3 more

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Parties

Commerce Commission

Plaintiff (respondent)

Bluestone Mortgages NZ Limited

First Defendant (applicant)

Trustees Executors Limited

Second Defendant (applicant)

TEA Custodians (Bluestone) Limited

Third Defendant (applicant)

Procedural Posture

Civil Enforcement Proceeding Under Credit Contracts and Consumer Finance Act 2003 / Interlocutory: Application for Summary Judgment, Strike Out and Leave to Bring Application Out of Time

Legal Issues

  1. 1 Whether the Deferred Establishment Fee (DEF) is an establishment fee, a full prepayment fee, or another credit fee
  2. 2 Whether the DEF is unreasonable under ss 41, 42, 43 and 54 of the Credit Contracts and Consumer Finance Act 2003
  3. 3 Whether securitisation and post-loan funding costs can be recovered via subpart 6 fees

Ratio Decidendi

The defendants' interlocutory applications were refused because the issues raised—characterisation of the DEF, reasonableness under the Act, the impact of securitisation on recoverable costs, and expert conflicts—raise substantial questions of fact and complex mixed law and fact that are not suitable for determination on summary judgment or strike out; Avanti did not decide these issues and did not justify summary disposal; leave to apply out of time was declined.

Court Disposition

Defendants' application to strike out refused; application for leave to bring summary judgment out of time refused; summary judgment application would have been refused; pending interlocutory applications adjourned; timetable directions ordered.

Orders

  • Defendants' application to strike out the plaintiff's amended statement of claim refused
  • Defendants' application under High Court Rules 12.4(3) for leave to bring summary judgment out of time refused