Quick Cash Finance Limited v Aspinall-Su'a [2018] NZDC 17283 (29 August 2018)

Last Updated: 21 May 2019

IN THE DISTRICT COURT AT THAMES

CIV-2017-075-000106

[2018] NZDC 17283

BETWEEN	QUICK CASH FINANCE LIMITED Plaintiff
AND	SO’ONAALOFA SHARON ASPINALL-SU’A Defendant

Hearing:	6 July 2018
Appearances:	P Bellamy for the Plaintiff Defendant in person
Judgment:	29 August 2018 at 10:00 am

RESERVE JUDGMENT OF JUDGE R G MARSHALL

Introduction

[1] The plaintiff issued proceedings against the defendant on 30 June 2017.

[2] The plaintiff is a finance company offering loans to clients. In its statement of claim that was filed and served on the defendant, the plaintiff alleges that on or about 2 December 2016 the defendant entered into a consumer credit contract with the plaintiff. The plaintiff advanced the sum of $1315 including establishment fees and insurance and the defendant supplied a motor vehicle as security for the contract.

[3] The loan contact provided for interest to be charged at the rate of 26 percent per annum and the defendant made payments to the account in the sum of $74.54, but thereafter fail to maintain payments for the term of the loan contract.

[4] The last payment made by the defendant to the plaintiff was in the sum of

$34.54 made on or about 21 December 2016.

QUICK CASH FINANCE LIMITED v SO’ONAALOFA SHARON [2018] NZDC 17283 [29 August 2018]

[5] Since the last payment administration default charges, interest and penalty interest have accrued. The plaintiff has also served notice on the defendant requiring payment of arrears as required under the Credit Contract and Consumer Finance Act. No further payments have been received and in addition, collection fees have been incurred.

[6] In its statement of claim the plaintiff’s claims from the defendant the sum of

$2,036.69 and the cost of an incidental to the proceedings making a total of $3,121.69.

[7] To the statement of claim the defendant filed an “affirmation of statement of defence and counterclaim”. The intituling referred to the defendant and Quick Cash Finance Limited as the plaintiff and Credit Recoveries Limited as the third party and a Sandi Purcell, Deputy Registrar – Thames Court as an additional party.

[8] The statement of defence filed by the defendant can be characterized as unorthodox due to the fact that the defendant is self-represented. The defendant in her statement of defence seems to conditionally accept the existence of the loan debt, but denies liability for payment as she appropriately engaged with the plaintiff to “reasonably negotiate and pay the account both by the issue of a bill of exchange and by cash, which was adamantly ignored by the plaintiff and therefore dishonoured”. The defendant further goes on to say that the plaintiff had refused every attempt to resolve and satisfy the account and had involved the third party collection agency namely Credit Recoveries Limited and as a result seeks a set off for the value of the

$3,121.69 plus $275 for the filing fees that she sought to be waived by the Registrar making a total of $3,396.69.

[9] The defendant then sought to counterclaim against the Deputy Registrar Sandi Purcell from the Thames District Court in the sum of $7,396.69 in compensatory damages and then in a counterclaim against Quick Cash Finance Limited and Credit Recoveries Limited in the sum of $33,960.69 in punitive damages. Orders were also sought for cancellation of the proceedings and for an order for discharge of consumer credit contract 58366 which is the loan document on which the plaintiff sued.

[10] A statement of defence to counterclaim by plaintiff and third party was filed by the plaintiff, stating Credit Recoveries Limited had no involvement in the proceedings as the third party and that there was no valid joinder of Credit Recoveries Limited as a third party.

[11] On 19 April 2018, a telephone conference was convened between the plaintiff and the defendant. I presided over that conference and granted a review of the Registrar’s decision and waived fees for the filing of the statement of defence and counterclaim. Further in that telephone conference issues relating to non-compliance of third party procedure as per rr 4.4 to 4.17 of the District Court Rules were pointed out to the defendant. In effect third party notices had not been served as per r 4.4(2)(a) of the District Court Rules 2014 within 10 days after the expiry of the time for the filing of the defendant’s statement of defence. No leave had been given either.

[12] As there may have been a prospect of fruitful discussions between the plaintiff and the defendant towards a potential resolution the matter was deferred to a further telephone conference on 7 May 2018.

[13] On 7 May 2018, a telephone conference was convened, but unfortunately there was no appearance by the defendant, although the defendant subsequently received the minute issued as a result of that telephone conference. As the matter has not been able to be resolved, I made the following timetabling directions to enable any interlocutory matters to be heard in the Thames District Court on 6 July 2018. The directions were as follows:

• (a) The defendant is to file and serve any leave applications, joinder notices and affidavits in support for the third and fourth party notices by 5pm on the 1st June 2018.
  
• (b) The plaintiff and third and fourth parties have until 5pm on the 18th June 2018 to respond.
  
• (c) The defendant has until the 27th June 2018 to reply.
  
• (d) Any submissions are to be filed on the 4th July 2018.

• (e) Any appearances are to be in person or by counsel.
  
  • (f) The hearing date for these interlocutory applications is set for Friday 6th July 2018 at 10am for two hours.
    
  • (g) The plaintiff and the defendant have leave reserved to request an urgent telephone conference if any issues arise from the directions that I have made.
    

[14] Subsequently a hearing was held at the Thames District Court on 6 July 2018. Mr Bellamy appeared for the plaintiff and Ms Aspinall-Su’a appeared in person. Ms Aspinall-Su’a filed a considerable amount of material being “affidavit of final counter-claimant, response of So’Onaalofa Sharron Aspinall-Su’a to notice of opposition dated 19 June 2018”, “affidavit of notice of joinder application and interlocutory application for plea in bar and application for orders”, and a bundle of documents for fixture on 6 July 2018.

[15] Towards the conclusion fo the hearing, Ms Aspinall-Su’a advised she had only received the plaintiff’s submissions that day. So Ms Aspinall-Su’a had an opportunity to adequetly respond, I allowed her 14 days to file any further written response. Ms Aspinall-Su’a on 24 July 2018 filed two additional documents being an “affidavit of final response to hearing 6 July 2018 on joinder matters and response to memorandum in support of application to strike out statements of defence reserved in the hearing” and “notice of supplementary documents supporting the affirmation of final response to hearing 6 July 2018 on joinder matters, and supplementary information responding to memorandum in support of application to strike out plaintiff’s statement of defence”. I have considered both documents.

[16] Nowhere in the documents filed by the defendant were applications seeking leave of the Court to file third party and subsequent party notices against any person or party. Nor was there any confirmation that any third party or subsequent notices had been served on any such particular person or party.

[17] The new documentation sought to joint more parties to the action. In addition to Credit Recoveries Limited, David Ross Anderson was sought to be added in his personal capacity and as director of Quick Cash Finance (Richmond) Limited to be added by way of addition to the intituling of the defendant’s documents. Also, Anthony Stallard, director of Stallard Law business client and legal counsel was also sought to be added. There was no reference to Sandi Purcell Deputy Registrar of the Thames Court.

[18] At the onset of the hearing Ms Aspinall-Su’a helpfully confirmed that the issues involving Sandi Purcell were unrelated to the proceedings and confirmed that she no longer sought joinder of Sandi Purcell as a party.

[19] Ms Aspinall-Su’a had made submissions and had filed the documents for the purposes of the hearing that I have already referred to. The documents generally covered wide ranging material and much of the material was irrelevant and inaccessible.

[20] Ms Aspinall-Su’a helpfully explained in her oral submissions that she sought to join David Ross Anderson as a defendant in his personal capacity as he was associated with the three companies, Quick Cash Finance Limited, Credit Recoveries Limited and Quick Cash Finance (Richmond) Limited.

[21] She said that in December 2016 she tried to pay David Anderson $200 as a reasonable settlement of arrears due at that time, but he did not want to take it, and required a cash payment of the arrears of $305. Further as he was associated with Quick Cash Finance Limited, that is the origin of the contract between herself and that company, she considered the company was in breach for not taking that payment of

$200 for arrears and the fact that Mr Anderson did not offer a dispute process addressing rights such as due process. She said there was no dispute resolution process to negotiate if payment should be accepted or denied.

[22] With Credit Recoveries Limited, this company appears at the foot of the intituling on the first pages of the notice of proceedings and statement of claim. Ms Aspinall-Su’a had noted that this company had listed her supposedly bad debts

with two other credit reporting agencies, Centrix and Equifax. Ms Aspinall-Su’a considered that to be defamatory and Credit Recoveries Limited and she seemed to be saying they had the same debt Quick Cash Finance Limited was claiming. This Ms Aspinall-Su’a says raises the question of who actually carried the debt and is a mish mash between what party was claiming what. That also she says, involved Quick Cash (Richmond) Limited which appeared on some initial documentation also. It seems to be accepted that all three companies were inter-related and Mr Anderson a director in each and so she says all three seemed to be claiming under the same contract for various purposes. Ms Aspinall-Su’a noted Quick Cash (Richmond) limited had recently been removed from the company’s office and she did not know why.

[23] In regard to Anthony Stellard he had issued the proceedings as per the statement of claim and notice of proceedings and had given his address for services at the office of Credit Recoveries Limited.

[24] Further Ms Aspinall-Su’a correctly points out that the procedure has been brought under the District Court Act 1947 which is the predecessor to the District Court Act 2016 and should have appropriately be brought under that Act.

[25] Further Ms Aspinall’Su’a considers Mr Stallard has a conflict of interest as he has a relationship with Credit Recoveries Limited and this is all part of the mish mash involving the three companies and he should not be acting in this particular case.

[26] Ms Aspinall-Su’a is correct that the intituling should have reflected that proceedings had been brought under the District Court Act 2016 rather than the 1947 Act. However, no prejudice could arise and I allow such an amendment to the proceedings being recorded as under the District Court Act 2016.

[27] In final summary Ms Aspinall-Su’a considers her credibility has been damaged as she had a perfect credit rating until this loan contract had fallen down and considers herself to have been bullied and wants the proceedings to stop.

[28] The plaintiff accepts that there is being errors in the intituling and some confusion over the references to the companies but says that the contract or loan

agreement was held by Quick Cash Finance Limited and that is the appropriate entity as plaintiff to issue the notice of proceedings and statement of claim.

[29] It is apparent that the third party and subsequent notices have not been filed and served in accordance with the District Court Rules 2014. Therese has been no service or simply no evidence of service on David Ross Anderson (nor Credit Recoveries Limited and/or Quick Cash Finance (Richmond) Limited) or Anthony Stallard. Further there has been no leave application. There is also no explanation as to how in accordance with r 4.4 the defendant seeks to make a claim against a third party as follows:

4.4 Third parties

(1) A defendant may issue a third party notice if the defendant claims any or all of the following:

• (a) that the defendant is entitled to a contribution or an indemnity from a person who is not a party to the proceeding (a third party):
  
• (b) that the defendant is entitled to relief or a remedy relating to, or connected with, the subject matter of the proceeding from a third party and the relief or remedy is substantially the same as that claimed by the plaintiff against the defendant:
  
• (c) that a question or issue in the proceeding ought to be determined not only between the plaintiff and the defendant but also between—
  
  • (i) the plaintiff, the defendant, and the third party; or
    
  • (ii) the defendant and the third party; or
    
  • (iii) the plaintiff and the third party:
    
• (d) that there is a question or an issue between the defendant and the third party relating to, or connected with, the subject matter of the proceeding that is substantially the same as a question or an issue arising between the plaintiff and the defendant.
  

(2) A third party notice must be issued within—

• (a) 10 working days after the expiry of the time for filing the defendant’s statement of defence; or
  
• (b) a longer time given by leave of the court.

(3) A third party notice may be issued only with the leave of the court if an application for judgment is pending under rule 12.2 or 12.3.

[30] In those circumstances, the application to join third or subsequent parties must fail and leave to join third or subsequent parties is declined.

[31] Returning to the original proceedings as between the plaintiff and defendant as to the initial claim, the plaintiff claim stands at $2,036.69 and the defendant’s counter claim appears as follows in the affirmation of statement of defence and counter claim filed on 26 August 2017:

• (B) Order for Award for Compensatory Damages:
  
  1. Court Costs (Total) $ 3,396.69
     

b. Defective CIV Filling (1974 Repealed Act)	1,000.00
c. Registry misconduct (Sec 64 DGA2016)	2,000.00
d. Registry misconduct (Sec 71 DCA2016)	1,000.00

TOTAL COMPENSATORY DAMAGES $ 7,396.69

(C) Order for Award for Punitive Damages (Est. by NOI 2014):

1. Quick Cash (In Dishonour) $ 8,000.00
   
2. Credit Recoveries False Claim 8,000.00
   

100. Oppressive Contract 1,000.00
     

4. Notices of Dishonour 1,000.00
   
5. Undue Humiliation 1,000.00
   
6. Reckless and malicious intent 1,000.00
   
7. Plaintiffs undue court set-off costs 3,121.69
   
8. Defendant’s set-off Costs 275.00
   
9. Notice of Intent 2nd Notice Registry Office 10,000.00
   

TOTAL PUNITIVE DAMANGES $ 33,960.69

[32] Obviously the seeking of the order for award compensatory damages, cannot cover the court costs, defective filing or registry misconduct. Those matters are totally

unrelated to the plaintiff or the plaintiff’s claim and court cost cannot be included as part of seeking damages.

[33] In the order for award for punitive damages the Credit Recoveries false claim, the plaintiff’s undue court set-off costs, defendant’s set-off costs (filing fee) and notice of intent, 2nd notice registry offence, cannot amount to valid claims for damages. That would leave as potential claims if they could be established:

• (a) Quick Cash (In Dishonour) $8,000.
  
• (b) Oppressive Contract $1,000.
  
• (c) Notices of Dishonour $1,000.
  
• (d) Undue Humiliation $1,000.
  
• (e) Reckless and malicious intend $1,000.
  

[34] Accordingly, the defendant’s counterclaim could amount at most to $12,000 on the basis set out in the defendant’s counterclaim. The plaintiff has submitted that these proceedings would more appropriately be dealt within the Disputes Tribunal. I am of the view that these proceedings could be more expeditiously and inexpensively resolved within the jurisdiction of the Disputes Tribunal given the sums involved. Accordingly, under s 37 of the Disputes Tribunal Act 1988 the proceedings will be transferred to the Disputes Tribunal.

RG Marshall District Court Judge