MILLS v ASB BANK LTD [2021] NZCA 259

MILLS v ASB BANK LTD [2021] NZCA 259 [21 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA506/2019[2021] NZCA 259BETWEEN LYNETTE JOY MILLSAppellantAND ASB BANK LIMITEDRespondentCourt: Clifford J, Gilbert J and Goddard JCounsel: Appellant in PersonB J Upton for RespondentJudgment:(On the papers)21 June 2021 at 3.00 pmJUDGMENT OF THE COURTA The appeal is allowed.B The order of the District Court entering summary judgment in favour ofASB on all causes of action apart from the claim for breach of s 22 of theCredit Contracts and Consumer Finance Act 2003 is set aside.C The proceedings are remitted to the District Court.D There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)The proceedings in the District Court and High Court[1] Ms Mills brought proceedings against ASB Bank Ltd (ASB) seekingcompensation for losses that she says she suffered as a result of ASB breachingobligations under the Credit Contracts and Consumer Finance Act 2003 (the CCCFA)and the law of negligence.[2] ASB applied for summary judgment, or in the alternative, to strike out theclaim. Judge Courtney granted summary judgment in favour of ASB in respect of allof Ms Mills' claims, other than a cause of action under s 22 of the CCCFA.1 Ms Millsappealed to the High Court. Clark J dismissed Ms Mills' appeal.2 Clark J subsequentlydeclined an application by Ms Mills for leave to appeal to this Court.3The appeal to this Court[3] This Court granted leave to appeal to Ms Mills on the question of whether theDistrict Court was correct to grant summary judgment in favour of ASB on part ofMs Mills' statement of claim.4[4] Counsel for ASB have filed a memorandum dated 19 May 2021 advisingthis Court that ASB consents to Ms Mills' appeal being allowed. ASB sought ordersthat:(a) the appeal be allowed by consent;(b) Ms Mills' claims and ASB's challenges to those claims be returned tothe District Court for determination; and(c) costs in this Court should lie where they fall.1 Peterson v ASB Bank Ltd [2018] NZDC 14505.2 Mills v ASB Bank Ltd [2019] NZHC 1505.3 Mills v ASB Bank Ltd [2019] NZHC 2383.4 Mills v ASB Bank Ltd [2020] NZCA 228, [2020] NZCCLR 22 at [29].[5] At a telephone conference convened by Goddard J on 17 June 2021, Ms Millsconfirmed that she consents to the making of the orders proposed by ASB.In particular, she does not seek any order in relation to costs in this Court.[6] We are satisfied that it is appropriate for the appeal to be allowed. The resultof allowing the appeal is that the entry of summary judgment on all but one ofMs Mills' claims is set aside, and the proceedings will continue in the District Court.Result[7] The appeal is allowed.[8] The order of the District Court entering summary judgment in favour of ASBon all causes of action apart from the claim for breach of s 22 of the CCCFA is setaside.[9] The proceedings are remitted to the District Court.[10] There is no order as to costs.Solicitors:Simpson Grierson, Auckland for Respondent