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High Court of New Zealand Decisions |
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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