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Watts v Leary [2016] NZHC 1623 (19 July 2016)

Last Updated: 12 October 2016


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY




CIV-2013-090-142 [2016] NZHC 1623

BETWEEN
MICHAEL JOHN WATTS
Plaintiff
AND
DAVID VIVIAN LEARY First Defendant
AND
SHIRLEY JEAN LEARY Second Defendant
AND
RICE CRAIG Third Defendant


On the papers

Counsel:
JB Murray for the Plaintiff
T Thoms for the First Defendant
H Twomey for the Third Defendant
Judgment:
19 July 2016




JUDGMENT OF TOOGOOD J




This judgment was delivered by me on 19 July 2016 at 10:00 am

Pursuant to Rule 11.5 High Court Rules








Registrar/Deputy Registrar














Watts v Leary [2016] NZHC 1623 [19 July 2016]

[1] The plaintiff, Mr Watts, is a United Kingdom citizen residing in England. He alleges that on 22 April 2009 he loaned the sum of £60,000 to the first and second defendants (Mr Leary and Ms Leary), most of which has not been repaid as required.

[2] Mr Watts says that the loan was to be used by the Learys in the purchase of a business, FRL Holdings Limited (FRL), of which Ms Leary was the sole director and shareholder. Mr Watts claims the loan was to be repaid after three years or earlier if the business was sold and compound interest was payable at the rate of five percent per annum. Solicitors acting for the Learys treated the payment as a gift but Mr Watts rejects that proposition.

[3] The funds received by the Learys were used as an advance to FRL to purchase the business known as Rosedale Liquor, in or about June 2009. The Learys sold the business about one year later. Mr Watts alleges that, on 24 April 2012, Ms Leary paid the sum of $10,831.19 to him but neither of the first or second defendants made any other payment to him despite demands for the balance of the loan having been made.

[4] Pursuant to a Minute of Sargisson AJ dated 28 May 2015, the second defendant was re-served with the pleadings on 16 May 2016.1

[5] The plaintiff has recalculated the amount of judgment sought to be sealed, claiming interest at five percent compounding annually from the date of the loan on

27 April 2009 to 30 June 2016. He seeks costs and disbursements in both the

District Court (from which the proceeding was transferred) and this Court.

[6] The notice of proceeding notified the second defendant that she must file a statement of defence to the plaintiff’s claim within 25 working days’ after the date on which she was served with the notice. The second defendant was informed that if she did not do so, the plaintiff may at once proceed to judgment on the plaintiff’s

claim, and judgment may be given in her absence.





1 According to an affidavit of service to that effect filed on 27 May 2016.

[7] The second defendant has not filed a statement of defence and the time notified her for doing so has expired. The plaintiff is entitled to judgment.

[8] Counsel for the plaintiff has set out the details of the claim for the outstanding balance, compounding interest, costs and disbursements as follows:





Balance
Loan received 27 April 2009

155,224.33
Interest at 5%, compounding (annually)


1 July 2010 to 30 June 2011
7,761.22
162,985.55
1 July 2011 to 24 April 2012 (8,149.28 pa
– 22.33 per day – 298 days)
6,654.34
169,639.89
LESS: repayment 10,831.19

158,808.70
25 April 2012 to 24 April 2013
7,940.43
166,749.13
25 April 2013 to 24 April 2014
8,377.46
175,086.59
25 April 2014 to 24 April 2015
8,754.33
183,840.92
25 April 2016 to 24 April 2016
9,192.04
193,032.96
25 April 2016 to 30 June 2016 (9651.65 pa
– 26.44 per day – 66 days
1,745.04
$194,778.00




District Court Costs
[2B $1,550 per day (2009 Rules apply as all steps prior to 1 July 2014)
Item
Description
Time allocation
1
Notice of claim
1.5
3
Information capsule
2.0
9.10
Application for order for substituted service on second defendant
0.4


3.9

Total
$6,045.00

High Court Costs
[2B $1,990 per day (2009 Rules apply as all steps prior to 1 July 2014)
Item
Description
Time allocation
9
New statement of claim (equivalent of amended pleading)
0.6
10
Preparation first case management conference
0.4
13
Appearance first case management conference
31 July 2014
0.3
14
Issues conference 29 October 2014
0.5
20
List of documents
2.5
28
Obtaining judgment without appearance
0.3
29
Sealing judgment
0.2


4.8

Total
$9,552.00




Disbursements sought
District Court filing fee
169.20
Attempted service on second defendant
50.00
Application for substituted service
223.50
High Court filing fee on statement of claim
110.00
Service fee on second defendant
97.75
Sealing judgment
50.00
Total
$700.45


[9] To summarise:

Principal and interest to 30 June 2016
194,778.00
District Court Costs
6,045.00
High Court Costs
9,552.00
Disbursements
700.45
TOTAL
$211,075.45



[10] Accordingly, I give judgment for the plaintiff (including interest) in the sum of $194,778.00. The second defendant shall pay costs in this Court and the District Court of $15,597.00 and disbursements of $700.45. The total amount the second defendant is required to pay is $211,075.45.









...................................

Toogood J


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