WESTPAC NEW ZEALAND LIMITED v DJ GARDINER [2013] NZHC 1243

WESTPAC NEW ZEALAND LIMITED v DJ GARDINER [2013] NZHC 1243

Applicants failed to discharge the onus for a stay or suspension: they did not show the appeal would be rendered nugatory, produced no evidence of exceptional or particular prejudice beyond ordinary consequences of bankruptcy (including lack of evidentiary support for employment risk), and the grounds of appeal did not raise novel or strong issues; accordingly the court declined to stay enforcement under r 20.10 or suspend adjudication under s 416 and refused to exercise inherent jurisdiction to grant the relief sought.

Citation
[2013] NZHC 1243
Parties
Plaintiff / Judgment Creditor: Westpac New Zealand Limited; First Defendant / Judgment Debtor: DJ Gardiner; Second Defendant / Judgment Debtor: H M Gardiner; Third Defendant: S J Osten; Fourth Defendant: Z J Gardiner
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2013
Procedural Posture
Civil Proceedings Involving Summary Judgment, Guarantees and Bankruptcy Adjudication / Application to Stay High Court Judgment and to Suspend Adjudication Pending Appeal
Outcome
Applications to stay the judgment and to suspend adjudication denied
Legal Topics
Summary Judgment, Stay of Enforcement, Suspension of Adjudication, Undue Influence, Independent Legal Advice, Duty of Mortgagee to Obtain Market Value, Inherent Jurisdiction
Bankruptcy and Insolvency Civil Procedure Equity Contract (guarantees) Property and Mortgage Law Summary Judgment Stay of Enforcement Suspension of Adjudication +4 more

Case Brief

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Parties

Westpac New Zealand Limited

Plaintiff / Judgment Creditor

DJ Gardiner

First Defendant / Judgment Debtor

H M Gardiner

Second Defendant / Judgment Debtor

S J Osten

Third Defendant

Z J Gardiner

Fourth Defendant

Procedural Posture

Civil Proceedings Involving Summary Judgment, Guarantees and Bankruptcy Adjudication / Application to Stay High Court Judgment and to Suspend Adjudication Pending Appeal

Legal Issues

  1. 1 Whether guarantees were invalid due to undue influence
  2. 2 Whether bank was on inquiry and required to ensure independent legal advice
  3. 3 Whether Westpac owed a duty to lend prudently

Ratio Decidendi

Applicants failed to discharge the onus for a stay or suspension: they did not show the appeal would be rendered nugatory, produced no evidence of exceptional or particular prejudice beyond ordinary consequences of bankruptcy (including lack of evidentiary support for employment risk), and the grounds of appeal did not raise novel or strong issues; accordingly the court declined to stay enforcement under r 20.10 or suspend adjudication under s 416 and refused to exercise inherent jurisdiction to grant the relief sought.

Court Disposition

Applications to stay the judgment and to suspend adjudication denied

Orders

  • Application by the fourth defendant under High Court Rules r 20.10 to stay enforcement of the 8 April 2013 judgment declined
  • Applications by the first and second defendants under High Court Rules r 20.10 to stay the 8 April 2013 judgment declined