In Howe & Ors v Westpac New Zealand Limited [2016] NZHC 2050, the Howes defaulted on a “consumer credit contract” in terms of the Credit Contracts and Consumer Finance Act 2003 (CCCFA). Westpac and the Howes then entered into a deed governing repayment of the debt. When the Howes defaulted on the deed, Westpac applied for summary judgment for the outstanding amount.
The Howes opposed summary judgment on the basis that the deed was a new consumer credit contract rather than a variation, and Westpac had failed to provide the disclosure required under the CCCFA. The ‘new contract’ argument was based on the CCCFA’s definition of “credit”, which includes a right in section 6(a) to “defer payment of a debt”. However, the High Court held that section 6(a) refers to the situation where a debt is incurred but payment is deferred. Here there was no debt, the only alteration being to the date and quantum of payments.
The High Court also rejected the arguments as to disclosure being required. If the contract was a variation then section 22 of the CCCFA might apply, but section 22 contained a legislative exemption to the variation disclosure requirements for this sort of deed. In the result, summary judgment was appropriate.