Wang v Westpac New Zealand Limited

[2012] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

CA836/2011
[2012] NZCA 158

BETWEEN  YEAN WANG
Applicant

AND  WESTPAC NEW ZEALAND LIMITED
Respondent

Hearing:         2 April 2012

Court:             Ellen France, Harrison and White JJ

Counsel:         Applicant in person
M V Robinson and T K Cunningham-Adams for Respondent

Judgment:      24 April 2012 at 2.15 pm

JUDGMENT OF THE COURT

AThe application for an extension of time in which to appeal is dismissed.

BThe applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. In August 2006 Ms Yean Wang borrowed $356,000 from Westpac New Zealand Ltd.  The loan was used to purchase an apartment in inner city Auckland (“the property”) for a price of $445,000.  Ms Wang executed a first mortgage over the property as security for Westpac’s loan. 

2. In August 2008 Ms Wang fell into default on her repayment obligations to Westpac.  In November 2008 the bank issued a notice to Ms Wang under s 119 of the Property Law Act 2007 of its intention to exercise its power of sale of the property.  Service was substituted pursuant to an order of the District Court.  Between February 2009 and February 2010 Westpac made three unsuccessful attempts to sell the property.  In July 2010 Ms Wang sold it for $92,000. 

3. Westpac applied for summary judgment against Ms Wang for the total amount of principal, interest and costs owing under the mortgage after the proceeds of sale of the property had been credited to her account.  Following a defended hearing in the High Court at Auckland, Associate Judge Doogue entered summary judgment for Westpac for $478,752.[1] 

   [1]      Westpac New Zealand Ltd v Wang HC Auckland CIV-2011-404-416, 4 October 2011.

4. On 10 October 2011 Ms Wang filed an application to review Associate Judge Doogue’s judgment in the High Court.  In a minute issued on 22 November 2011 the Associate Judge pointed out that Ms Wang had erred and that she should have filed an appeal to this Court.  On 30 December 2011 Ms Wang filed an application in this Court for an extension of time granting leave to appeal under r 29A of the Court of Appeal (Civil) Rules 2005. 

5. In support of her application to this Court Ms Wang has explained that she wrongly interpreted s 26P(1) of the Judicature Act 1908 when filing her application for review.  She has not explained the reason for her delay from 22 November until 30 December 2011, but Westpac takes no issue on this point.  Instead, Westpac opposes Ms Wang’s application on the grounds that her substantive appeal has no prospect of success; the appeal raises no issue of public importance; and Westpac has suffered significant delay in recovering its debt. 

Discussion

1. This Court has a wide and flexible discretion when determining an application under r 29A.  However, the discretion will not lightly be exercised.  Ms Wang must show that an extension will serve the interests of justice.  Relevant considerations in that respect include the prospective merits of the appeal and whether it raises any issue of public importance.[2]

   [2]See Robertson v Gilbert [2010] NZCA 429 at [24]; My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

2. Ms Wang’s primary argument on appeal is that she has suffered loss as a result of Westpac’s three unsuccessful attempts to sell the property.  Those attempts, she says, would have had an adverse effect on the property’s value, and the bank’s actions have deprived her of a chance to hold the property.  We note, however, that Ms Wang no longer appears to challenge Associate Judge Doogue’s finding that she sold the property, not Westpac.

3. We are satisfied that this ground of appeal is unarguable.  Ms Wang has not led any evidence to support her claim of loss in value as a result of Westpac’s failed attempts to sell the property.  But, more importantly, Mr Robinson has drawn our attention to Ms Wang’s own admission in an email to Westpac on 4 July 2008 that she herself had been trying to sell the property at a loss ever since she had acquired it in 2006; that she had been doing her best to repay the mortgage over time; and that she was by then exhausted.  She advised that she was unable to sell the property partly because of a dispute about the ground rent.

4. On 28 July 2008 Ms Wang sent a further email to Westpac, saying that “this property is driving [me] mad”.  She repeated that she had been trying “very hard” to sell it and that the agent was not responding.  She concluded: “I hope your bank can make a forced sale to solve some of my debt problem.”

5. Westpac acted on Ms Wang’s request in taking steps to sell the property.  By then she had fallen into default.  The bank issued the s 119 notice before enforcing its power of sale.  But, as noted, Westpac’s attempts were unsuccessful and eventually Ms Wang was able to sell the property. 

6. It is plain that Ms Wang has no factual foundation for a claim that Westpac’s unsuccessful attempts to sell the property caused her loss.  Ms Wang cannot blame Westpac for any diminution in the property’s value over the period between February 2009 and February 2010 when she herself requested the bank to exercise its remedies, as it was entitled by law in any event from August 2008. 

7. Ms Wang has raised subsidiary arguments about the validity of the order for substituted service of Westpac’s s 119 notice and of the effectiveness of service.  However, this argument, as Mr Robinson submits, falls away given that Westpac did not exercise its power of sale.

8. In summary, Ms Wang’s appeal has no prospect of success and raises no issue of public importance.  Her application for an extension of time in which to appeal is dismissed accordingly.

9. Ms Wang must pay Westpac costs on a standard application on a band A basis together with usual disbursements.

Solicitors:
Simpson Grierson, Auckland for Respondent