DB BREWERIES LIMITED V TA GIBSON HC WN CIV-2009-485-340 [2009] NZHC 1109 (24 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                         CIV-2009-485-340



               BETWEEN                       DB BREWERIES LIMITED
                                             Plaintiff

   
           AND                           THOMAS ANDREW GIBSON
                                             Defendant


Hearing: 
     24 August 2009

Appearances: H. Evans - Counsel for Plaintiff
             A. Davie - Counsel for Defendant

Judgment:     
24 August 2009 at 4.00 pm


              JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL



    This judgment was delivered by Associate
Judge Gendall on 24 August 2009 at
                4.00 p.m. pursuant to r 11.5 of the High Court Rules.




Solicitors:    Treadwells,
Barristers & Solicitors, PO Box 859, Wellington 6140
               Young Hunter, Barristers & Solicitors, PO Box 929, Christchurch
8140




DB BREWERIES LIMITED V TA GIBSON HC WN CIV-2009-485-340 24 August 2009

[1]    Before the Court is an application by the
plaintiff for summary judgment
against the defendant.


[2]    Initially the summary judgment application was opposed by the defendant.


[3]    Essentially it appears that the facts which would seem to establish liability in
this case are relatively straight forward.
Pursuant to various loan agreements the
plaintiff advanced to companies owned and operated by the defendant loans in
excess of $3
million. Namely these represented loan advances of about $2.4 million
dollars to Blair Street Sports Bar Limited and of about $800,000.00
to Wellington
Loaded Hog Limited.


[4]    The defendant guaranteed these company loans personally.


[5]    Subsequently, Blair
Street Sports Bar Limited fell into arrears with respect to
rental payments and repayments of the principal owing under its loan.
It seems that
pursuant to a cross-guarantee Wellington Loaded Hog Limited was also in default.


[6]    Demand was made on both companies
and also on the defendant personally
as guarantor. No repayments were apparently made and the amounts outstanding
under the Loan
Agreements called up.


[7]    In this proceeding there are two causes of action ­ the first against the
defendant with respect to
his guarantee of the Blair Street Sports Bar Limited
indebtedness and the second against the defendant with respect to his guarantee
of
the Wellington Loaded Hog Limited indebtedness.


[8]    In so far as the first cause of action relating to the Blair Street Sports
Bar
Limited guaranteed loan indebtedness is concerned, before me Mr. Davie for the
defendant confirmed that the defendant consents
to judgment being entered against
him on this cause of action both as to liability and quantum.

[9]    With respect to quantum
on that first cause of action, counsel for the plaintiff
has filed a memorandum dated 21 August 2009 which sets out the amount for
which
judgment is sought.


[10]   That said, by consent, summary judgment is granted to the plaintiff against
the defendant with
respect to the plaintiff's first cause of action relating to the Blair
Street Sports Bar Limited guaranteed indebtedness for the
following amounts:
       (a)     Claim in respect of Blair Street Sports Bar Ltd
               ("BSSL")                       
                       $2,096,218.28

       (b)     Interest on the claim of $2,096,218.28 from
               7 January 2009 to
24 August 2009 at 10.50%
               per annum (225 days @ $603.02 per day) as
               provided for by Schedule 1 of the
BSSL
               Agreement and clause 5 of Schedule 3 of the
               BSSL Agreement                                   
     $ 135,679.50

       (c)     Disbursements

               - Filing fee                          $1,100.00
               -
Filing fee for amended claim        $ 90.00
               - Avon Investigations
                 Service and investigation fee 
     $1,641.38
                                                                      $    2,831.38

       (d)     Costs on a solicitor/client basis as provided for by
        
      Clause 5 of Schedule 3 of the BSSL Agreement         $      22,190.63

       (e)     Agency fee for call over            
                  $       593.35

               Total =                                                $2,257,513.14

[11]   So
far as the second cause of action in the plaintiff's statement of claim is
concerned, counsel for the parties advise that as the
spring and summer seasons
approach, it is intended that the bar formerly operated by Wellington Loaded Hog
Limited is to be sold
and it is at that stage that the quantum of the plaintiff's claim
against the defendant under this cause of action for Wellington
Loaded Hog Limited
indebtedness will become known.


[12]   That said, by consent, the plaintiff's claim against the defendant under
the
second cause of action in this proceeding (both as to liability and quantum) is now
adjourned to a call in the Associate Judge's
Chambers List at 10.00 am on 14

December 2009. A way forward with respect to that claim will be considered at that
time.




 
                                                `Associate Judge D.I. Gendall'