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High Court of New Zealand Decisions |
Last Updated: 29 March 2019
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
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CIV-2014-055-418 [2018] NZHC 35
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BETWEEN
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B & F PAPERS LIMITED
Plaintiff
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AND
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NZPC HOLDINGS LIMITED
First Defendant
TROY LEON McCORMACK
Second Defendant
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Hearing:
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4-5 September 2017
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Appearances:
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D M O’Neill, for Plaintiff
Appearance excused for First Defendant
T M Braun and L H H Hunt for Second Defendant
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Judgment:
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1 February 2018
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JUDGMENT OF PALMER J
This judgment is delivered by me on 1 February 2018 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
Counsel/Solicitors:
D M O’Neill, Barrister, Hamilton Parshotam Lawyers, Auckland Whitfield Braun Ltd, Hamilton
B & F PAPERS LTD v NZPC HOLDINGS LTD [2018] NZHC 35 [1 February 2018]
Summary
[1] It is not difficult to provide a personal guarantee when involved in a business. But care needs to be taken in doing so because it can be difficult to escape personal liability under it, even when no longer involved in the business. Here, B&F Papers Ltd (B&F) supplied paper to NZPC Holdings Ltd (NZPC) from 2006 to 2013. Mr Troy McCormack, Managing Director of NZPC, signed a personal guarantee of NZPC’s debts to B&F in 2006. NZPC got into financial difficulty. An agreed payment plan did not help. Mr McCormack fell out with his fellow directors and resigned in March 2013. In June 2013 B&F first made demand from Mr McCormack under the guarantee. He disputes liability.
[2] Mr McCormack is liable under the personal guarantee to B&F for $263,014.36. His friend, B&F Regional Manager Mr Roger Forster, paid Mr McCormack a personal visit a week or two after Mr McCormack’s resignation. I find, on the evidence, Mr Forster did not release Mr McCormack from the guarantee nor agree that amounts paid by NZPC to B&F would reduce the guarantee obligation. The agreed payment plan did not vary the underlying credit arrangement without Mr McCormack’s assent, so his guarantee was not discharged by operation of law. Nor did payments by a third party to B&F, for paper it passed on to NZPC, extinguish Mr McCormack’s liability. Mr McCormack must pay the debts he guaranteed.
What happened?
[3] B&F, owned by the Tripp family, has been in operation for approximately 85 years as a supplier and distributor of paper to printing companies around New Zealand. NZPC was a reasonably large printing company based in Hamilton and incorporated in 1993. In 1996 Mr Allan Dahlberg and Mr John Kennedy owned 90 per cent of the shares. Mr McCormack owned 10 per cent of the shares. By November 2011, all three were equal shareholders and were directors.1 NZPC is now in liquidation.
1 Brief of Evidence of Troy McCormack dated 7 August 2017 [McCormack Brief] at [6].
[4] In September 2006, NZPC applied for monthly credit with B&F using B&F’s standard form. The owners of NZPC were listed as Mr McCormack and Mr Dahlberg. Mr McCormack was named as the “Person Responsible for Payment of Account”. Mr McCormack signed as Managing Director, on 7 September 2006,2 below a clause which stated:
It is agreed that I have read and understood your Terms and Conditions of sale in your price book. I/We expressly agree to abide by the Payment Terms and Conditions of Sale and to any alterations advised in subsequent price books.
[5] The Terms and Conditions reserved B&F’s right to charge daily interest at five per cent above the BNZ rate on the day payment was due, and provided the customer was liable for the costs of collection and legal fees incurred in recovering amounts payable.
[6] On 3 September 2006, Mr McCormack had signed the personal guarantee which was below that on the same form. It stated:
I the undersigned being a Director of NZPC Holdings Ltd, of 192 Collingwood Street, Hamilton, hereby personally request you to supply to our company such orders as it shall from time to time require of you, and in consideration of you supplying such orders, we personally undertake to pay you the amount payable in respect of such orders upon demand, as and when the accounts payable in respect of such orders shall become due. No lapse of time or act of Bankruptcy will release me from my guarantee. The use of this account shall constitute acceptance of all the Terms and Conditions.
[7] Mr McCormack’s evidence is he was naïve in signing the guarantee and, if he had been aware it was made in his personal capacity, he would not have signed it.3 He says Mr Kennedy told him to sign it and told him to insist on 60 days’ credit.4 But he does not dispute he did sign it. The other two directors, Mr Kennedy and Mr Dahlberg, did not sign the guarantee. B&F supplied NZPC with paper from 2006.
2 Notes of Evidence [NOE] at page 115/ line 8.
3 McCormack Brief at [14].
4 McCormack Brief at [13] and NOE at 113/24.
[8] Below Mr McCormack’s signature is his handwritten annotation “All subject to B&F accepting 60 Days Credit”. B&F submits that was varied by insertion of new terms and conditions into the book of sale in December 2006 that required payment no later than the 20th of the following month. But the evidence is B&F abided by the 60 days payment period, which Mr Brendan Tripp of B&F acknowledged as a standard grace period in the paper and printing industry.5
Payment difficulties and payment plan
[9] It is common ground that NZPC started falling behind in its payments from early 2011. Mrs Maureen Person, B&F’s Financial Controller, corresponded with NZPC seeking payment. In a letter of 13 February 2012 to Mr McCormack, she mentioned the guarantee. In response, Ms Gail Hellyer, the General Manager of NZPC, requested a payment plan. While some payments were made, NZPC fell further behind in its payments, particularly from November 2012.6 Credit was temporarily stopped by B&F in early December 2012 before another payment was made, a pattern which continued in early 2013.7
[10] On 1 February 2013 Ms Hellyer requested a payment plan for delayed payment, including interest, on what she understood to be the outstanding debt of
$80,000. Mr McCormack says he attended a meeting with B&F on 12 February 2013, at which payment was discussed.8 The next day Mrs Person forwarded to Ms Hellyer a payment plan for staging payments of $26,135.51 per month to pay off the then- outstanding amount of $156,813.05. Mr McCormack signed the payment plan for NZPC as Director and Mrs Person signed for B&F. Mr McCormack’s evidence under cross-examination is that his position as guarantor was at the forefront of his mind in doing so, since Mrs Person said she would have a piece of him personally if the payments were not met.9 His evidence, in response to a question from me, was that was when he became aware the personal guarantee bound him personally.10
5 Brief of Evidence of Brendan Tripp dated 21 July 2017 [Tripp Brief 1] at [19] and NOE at 8/5-20.
6 Brief of Evidence of Maureen Person dated 19 July 2017 [Person Brief] at [11].
7 Person Brief at [13], NOE at 38/20, Tripp Brief 1 at [31] and NOE at 8/5–10.
8 McCormack Brief at [23].
9 NOE at 121/17–21.
10 NOE at 137/12–21.
Mr Forster’s visit with Mr McCormack
[11] On 18 March 2013, Mr McCormack resigned as director of NZPC. The outstanding amount then was $164,534.50.
[12] Mr Roger Forster was employed by B&F as a Regional Manager, dealing with sales and promoting services and products. He had known Mr McCormack for about 22 years, from before his employment with B&F, and enjoyed regular friendly visits with him.11 He heard Mr McCormack had left NZPC and called round to see him at home within a couple of weeks.
[13] Mr McCormack’s evidence is all his dealings with B&F were with Mr Forster who was his main point of communication.12 While he accepts Mr Forster may have visited him because they were friends, he believes it was a business visit, during normal business hours.13 Under cross-examination and re-examination he thought the meeting with Mr Forster happened between 18 March and the end of March, or around a week after his resignation on 18 March, and lasted two hours or more.14 He said the meeting started around 3.00 pm, his wife came home during it, around 4.30 pm, and Mr Forster left about 5.30 pm.15 Mr Forster is vaguer on the details of his visit to Mr McCormack in March or April 2013. He thinks it may have been on a Tuesday or Wednesday after he knocked off work, perhaps around 3.30 pm, and may have lasted up to an hour.16
[14] Mr McCormack’s evidence is he told Mr Forster he would not stay in the industry because that would be detrimental to NZPC’s ability to reduce debt and he was not responsible for debt going forward.17 His evidence is Mr Forster told him not to worry about it.18 Mr McCormack maintained Mr Forster assured him of release from the guarantee.19 In cross-examination he said he “didn’t feel it was necessary” to write to B&F confirming release because, he said, “I categorically understood that
11 NOE at 73/3.
12 McCormack Brief at [51].
13 McCormack Brief at [60].
14 NOE at 126/1–9 and 134/15–20.
15 NOE at 134/20–33.
16 NOE at 74/1–12.
17 McCormack Brief at [29].
18 McCormack Brief at [30] and NOE at 132–133.
19 NOE at 126/25–32.
I was not responsible for debt going forward”.20 He also said under cross-examination that, when Mr Forster was in his car, leaving, Mr McCormack asked him to make sure he was not covering anything going forward, and Mr Forster said “don’t worry about it Troy, it’s OK”.21
[15] However, Mr Forster’s evidence is that he told Mr McCormack he was there as a friend which he would have reiterated several times.22 He says he had nothing to do with financial aspects of B&F’s activities such as collection of debts, other than ringing a client to see why they were behind.23 This is corroborated by Mr Tripp.24 Mr Forster says he did not have substantial business dealings with Mr McCormack at NZPC and was not in regular business contact with him at that stage.25 Before Mr McCormack’s resignation from NZPC, Mr Forster says he was not aware Mr McCormack had provided a guarantee and he never discussed the guarantee with anyone at B&F.
[16] Under cross-examination Mr Forster said he was certain he did not discuss the guarantee with Mr McCormack but then said he could not be certain and said he just did not remember discussing it.26 Neither could he remember any discussion of NZPC’s indebtedness. He said Mr McCormack was emotional, and attacked Mr John Kennedy of NZPC but he said he was just there as a friend, to support Mr McCormack. He said under cross-examination he made that categorically clear.27 He denies saying that B&F would not hold Mr McCormack personally responsible under the guarantee.28 He said he did not have that sort of authority, he knows he cannot say those sorts of things and he would never say that.29 He was very clear about the limits of his authority. In response to a question from me he accepted he may have said “OK” and “don’t worry about it” during the conversation but he was adamant that
20 NOE at 128/13–16.
21 NOE at 133/3–7.
22 Brief of Evidence of Roger Forster dated 8 May 2017 [Forster Brief] at [23]–[25].
23 Forster Brief at [12].
24 Tripp Brief 1 at [21]–[22].
25 NOE at 74/27–33.
26 NOE at 76/1–27.
27 NOE at 78/1–2.
28 NOE at 78/24–32.
29 Forster Brief at [27] and NOE at 78/32.
would only have related to Mr McCormack getting emotional about a fellow director, not in relation to releasing a personal guarantee.30
[17] The payment plan did not help. The first payment was not made. Sporadic payments totalling $52,060.58 were made by NZPC from 18 March 2013 to 24 March 2013. If B&F refused to provide paper, it risked preventing NZPC from being able to repay what was already owing. However, by 21 May 2013 the outstanding debt was
$265,920.37. B&F lost patience and put NZPC on hold by not supplying further paper on credit.31 No further payments were made by NZPC towards their account with B&F after 5 June 2013.
[18] Rosetown Print Ltd (Rosetown) is another printing company. It had a cooperative relationship with NZPC. In July and December 2012, Rosetown ordered paper for NZPC from two other paper suppliers. Rosetown was also a customer of B&F. In June 2013, Rosetown ordered paper from B&F on NZPC’s behalf. Rosetown charged NZPC a margin of around 10 per cent on the paper.32 Rosetown required payment from NZPC before placing an order with B&F.33 Initially, from 18 March 2013 to 1 April 2014, $322,631.31 worth of paper was delivered to NZPC at Rosetown’s request on this basis.34 Then, from 1 April 2014, B&F refused to consign it to NZPC and delivered it to Rosetown from where NZPC would pick it up.35 This continued until July 2015.
[19] On 5 June 2013 B&F sent a letter of demand to Mr McCormack under the guarantee, requesting payment of $265,920.37 within seven days. On 11 June 2013, by email, Mr McCormack responded by saying he was no longer a director of, nor
30 NOE 93/15-31.
31 Tripp Brief 1 at [39] and NOE at 69/31–34.
32 NOE at 99/24.
33 NOE at 99/20–22.
34 Brief of Evidence of Brendan Tripp dated 25 August 2017 [Tripp Brief 2] at [7].
35 Tripp Brief 2 at [8].
employed by, NZPC. Mrs Person responded the next day by email pointing out that did not hinder B&F calling on the guarantee. Mr McCormack did not mention being released from the guarantee. He says that was because he was intimidated by Mrs Person and he decided to consult his lawyer, Ms Kellaway. Ms Kellaway had a telephone conversation with Mrs Person. Ms Kellaway’s memorandum of 20 June 2013 about that conversation does not mention any release either.
[20] NZPC’s accountant at Deloittes persuaded Mr Tripp of B&F to hold off enforcement of the letter of demand. NZPC made several excuses for non-payment, including pointing to an always-imminent sale of a building that would put the situation right and attributing blame to Mr McCormack in several ways.36 When NZPC’s story changed, but repayments were still not forthcoming, B&F’s patience finally expired. Ms Person appears to have felt strung along by Ms Hellyer. On 3 July 2014, a further letter of demand was sent to NZPC for an outstanding amount of
$290,380.84.
[21] On 13 July 2015, NZPC was placed in liquidation. There is no evidence B&F took steps to recover from NZPC, even as an unsecured creditor. B&F relies on Mr McCormack’s guarantee.
[22] B&F sues Mr McCormack personally on his guarantee and seeks the principal sum of $263,014.36 plus interest at five per cent above the BNZ based rate, which Mr Tripp estimates at around $118,084.01,37 as well as the costs of collection and solicitor/client costs. The calculation of the principal is based on B&F’s statements of NZPC’s running balance of debits as at 21 May 2013 minus three charges for interest.
[23] The trial was held in Hamilton over two days. I heard evidence on behalf of B&F from: Mr Brendan Tripp, B&F’s IT Manager; Mr Roger Forster, B&F’s Regional Manager; Ms Maureen Person, B&F’s then-Financial Controller; and Mr David Morris, Managing Director of Rosetown.
36 Person Brief at [31].
37 Common Bundle of Documents at 407.
Issue 1: Did Mr Forster partially release Mr McCormack from the guarantee?
[24] There is no disagreement about the law or the meaning of the original guarantee. If obligations guaranteed are not satisfied, the guarantor must satisfy them to the extent of the terms of the guarantee. But a continuing guarantee can be released or it can be revoked in respect of liability to accrue in the future.38
Submissions
[25] Mr Braun says Mr McCormack’s primary defence is B&F released Mr McCormack from his guarantee, through Mr Forster, for any indebtedness after 18 March 2013. He relies on Mr McCormack’s evidence which he submits demonstrates Mr McCormack made it sufficiently clear to Mr Forster that he would not be personally liable under his guarantee for any further debts incurred by NZPC. He submits Mr Forster responded that was OK and Mr McCormack was not to worry and Mr Forster also agreed to apply payments to the oldest debt first using words to the effect of “OK no worries”. Mr Braun submits the majority of Mr McCormack’s personal and professional dealings with Mr Forster were verbal, he had no reason to doubt Mr Forster’s authority and Mr McCormack did not consider any further communication with B&F was required. Mr Braun submits Mr McCormack acted in reliance on B&F’s representation through Mr Forster, from which it would be unconscionable to allow B&F to resile. Although he acknowledges Mr McCormack had not pleaded estoppel, he submitted B&F is estopped from relying on the guarantee for debts incurred after 18 March 2013.
[26] Mr O’Neill, for B&F, submits Mr McCormack’s account of the conversation with Mr Forster is a fantasy – something Mr McCormack wanted to believe. He relies on Mr Forster’s evidence that he did not have B&F’s authority to release Mr McCormack from the guarantee and did not do so. He submits B&F never released Mr McCormack from his personal guarantee.
38 James O’Donovan and John Phillips The Modern Contract of Guarantee (3rd ed, LB Information Services, Sydney, 1996) at 436 cited with approval by Venning J in Watkins v Orix New Zealand Ltd [2012] NZHC 992 at [16].
Decision
[27] It is possible for the parties to a contract of guarantee to agree to vary or release it orally though, as Kevin McGuinness states in The Law of Guarantee (in a passage relied upon by Mr Braun), “it is certainly wise for the notice to be given in writing” and “the termination of the guarantee must be straightforward and to the point”.39 But as in Watkins v Orix New Zealand Ltd, which relied on that passage, there is a direct evidential conflict here as to whether the guarantee was, in fact, varied or released.
[28] I do not consider the evidence here supports the proposition the guarantee was released or varied by Mr Forster on behalf of B&F because:
(a) While Mr Forster acknowledged he may have used the words alleged at some point in the conversation, he was adamant they did not relate to the guarantee, which he had not dealt with before and with which he was not authorised to deal.
(b) There is no contemporaneous documentation of any suggestion of a release of the guarantee by Mr Forster. Mr Forster did not mention it to anyone at B&F. And Mr McCormack did not seek to confirm it with B&F.
(c) Furthermore, Mr McCormack did not mention it in responding to B&F’s claim on the guarantee. Ms Kellaway’s memorandum of her call to Mrs Person records that she mentioned Mr Forster’s visit to Mr McCormack to illustrate B&F knew Mr McCormack had resigned but does not mention the alleged release from the guarantee. Mr McCormack’s liability under the guarantee was the reason for the call.
[29] Perhaps Mr McCormack has convinced himself, at the time or subsequently, that words used by Mr Forster in that conversation meant he was released from
39 Kevin Patrick McGuiness The Law of Guarantee (2nd ed, Carswell Thomson Professional Publishing, Toronto, 1996) at [6.60] cited by Venning J in Watkins v Orix New Zealand Ltd, above n 38, at [23].
ongoing liability under the guarantee. But he has not convinced me that Mr Forster used those words in relation to release from the guarantee. Rather, the evidence is against that having happened. There is no estoppel. I conclude Mr McCormack was not released from the guarantee by Mr Forster on behalf of B&F.
Issue 2: Was the guarantee ineffective or varied?
[30] It is well established that a material variation to the nature of a principal contract, not assented to by the guarantor, will avoid a guarantee.40 So if a lender and borrower agree a new extended term of a loan without the assent of, and prejudicing, the guarantor the guarantee will be discharged.41 But the Court of Appeal held in Bunting v MJN McNaughton Ltd that provision for interest on payments required by terms of trade, but not paid, by the 20th of the following month expressly contemplated payment may not be made.42 It held continuing availability of credit there was of no concern to the guarantor.43 And it held a specific arrangement to allow the company time to pay was not a contractual extension because there was no fixed date for payment. In Australian Guarantee Corporation (NZ) Ltd v Slade and Hooper the Court of Appeal held that, if guarantors sign a variation as directors, it would be unreal for them to be held not be consenting to it.44
[31] Mr Braun submits a key aspect of the guarantee was that it was conditional on 60-day credit and Mr Tripp’s evidence suggests he did not consider he was bound to 60-day credit so the guarantee was never effective. Mr Braun goes on to submit the payment plan of 13 February 2013 was a clear breach of, or variation to, B&F’s Terms and Conditions that payment be made no later than the 20th of the month following the date of invoice. He submits the payment plan, which Mr McCormack signed as
42 Bunting v MJN McNaughton Ltd [1992] 2 NZLR 513 (CA) at 515.
43 At 515.
44 Australian Guarantee Corporation (NZ) Ltd v Slade and Hooper, above n 40, at 11-12.
principal debtor, effectively released Mr McCormack from the guarantee. He relies on Herron v Bank of New Zealand,45 for the proposition that any material variation of the terms of the consent between the creditor and the principal debtor will discharge the guarantor unless the guarantor consents to it. This is pleaded as an affirmative defence.
[32] Mr O’Neill, for B&F, submits the payment plan merely allowed NZPC to trade out of its position, with the end result of lessening any liability under the guarantee. He agrees a material variation of the agreement between the principal debtor and the creditor, in a way which could prejudice the interests of the guarantors, will discharge the guarantor. He agrees a binding agreement between creditor and debtor to extend the time for performance of the debtor’s obligations under the principal contract would release a guarantor of liability. But he submits there was no substantial or material alteration and no binding agreement to extend time for performance here, merely extension of payment terms and passive inactivity by B&F which resulted in the requisite payments not being made. Mr O’Neill submits this does not discharge the guarantee. He also submits the payment plan was consented to by Mr McCormack who, he says, cannot say he was not signing as guarantor.
[33] Mr Tripp’s evidence was not that he did not consider B&F legally bound by the 60-day credit. Rather, he indicated he would take advice about that question. But his uncontested evidence was B&F did abide by 60-day credit which was the industry standard.46 The guarantee was not ineffective for this reason.
[34] The payment plan between NZPC and B&F did not purport to vary, or have the effect of varying, the nature of the contractual obligation between NZPC and B&F or the guarantee. As in Bunting, the terms of trade expressly contemplated payment may not be made and the payment plan was not a contractual extension to a fixed date for payment. Rather, its purpose was to allow NZPC’s obligations to B&F to be met, consistent with the guarantee. The payment plan did not prejudice Mr McCormack; it
45 Herron v Bank of New Zealand (2000) 6 NZBLC 103 (HC).
46 NOE at 7/14–21 and 8/1–20.
benefited him. And in any case, as in Bunting, he consented to it as guarantor in signing it as director. On his own evidence, Mr McCormack was conscious of his position as guarantor in signing the payment plan and still signed it.
[35] I conclude Mr McCormack’s guarantee to B&F was not ineffective or varied.
Issue 3: Should additional payments be applied against the guarantee?
[36] Finally, Mr Braun submitted all payments by NZPC to B&F, including those for cash sales and those via Rosetown, should have been but were not applied to the debt, and extinguish the debt. He suggested the Rosetown arrangement was a sham, that Mrs Person accepted it was a sham and Mr Forster accepted it would be perceived as a sham.47
[37] I am satisfied, on the basis of Mr Tripp’s evidence, and the accounts in evidence, that the NZPC payments received by B&F were applied to the oldest accounts first. Although Mr Braun initially seemed to suggest otherwise at trial, Mr McCormack accepted as much under cross-examination.48 The receipts for cash sales were not repayments of earlier debts but were payments for particular consignments of paper under additional separate one-off contracts, after credit was stopped. They should not have been applied to the debt.
[38] The receipts by B&F from Rosetown were governed by B&F’s terms and conditions with Rosetown, not with NZPC. I do not consider Rosetown was acting as an agent for NZPC to the extent that NZPC’s terms and conditions applied. Nothing about the parties’ understanding of the arrangement suggests that. It was a new and separate contractual arrangement between B&F and Rosetown combined with another contractual arrangement between Rosetown and NZPC. Paper and money were exchanged under each. Rosetown applied a margin over the price charged by B&F. Nothing suggests it was a sham. Mr McCormack was not guaranteeing Rosetown’s payments to B&F and its payments did not reduce his obligations in respect of NZPC’s debts.
47 Citing NOE at 62/1-4 and 87/1-6.
48 NOE at 118/2–13.
[39] I do not consider additional payments should be applied against the guarantee.
Costs
[40] B&F claims from Mr McCormack payment of principal of $263,014.36 plus interest at five per cent above the BNZ rate on the day payment was due and B&F’s costs of collection, including legal fees, in recovering the amounts payable.
[41] The general rule is that, unless the claimant can rely on a separate cause of action, litigation costs can only be recovered as costs, not as damages.49 However, rr 14.6(1)(b) and 14.6(4)(e) of the High Court Rules 2016 provide a court may award indemnity costs, “reasonably incurred by a party”, if “the party claiming costs is entitled to indemnity costs under a contract or deed”. In ANZ Banking Group (NZ) Ltd v Gibson, the Court of Appeal found a contractual obligation to pay indemnity costs will be enforceable unless contrary to public policy.50 It found there was no reason why liability for costs of enforcing a guarantee, provided for in the contract for guarantee, should not be enforceable. I do not consider there is any material difference here. I order payment of reasonably incurred indemnity costs under r 14.6(4)(e). If the parties disagree about what costs were reasonably incurred, I suggest they refer the matter to an independent in the first instance.51
Result
[42] I order Mr McCormack to pay B&F:
(a) $263,014.36 in damages;
(b) interest on that sum at five per cent above the BNZ rate on the day payment was due;
49 Boswell v Millar [2014] NZCA 314, [2014] 3 NZLR 332 at [50]; Vero Liability Insurance Ltd v Heartland Bank Ltd [2015] NZCA 288 at [111]; Louise Merrett “Costs as Damages” (2009) 125 LQR 468.
50 ANZ Banking Group (NZ) Ltd v Gibson [1986] 1 NZLR 556 (CA) at 566; Black v ASB Bank Ltd [2012] NZCA 384 at [77]–[79]. See Sim’s Court Practice (online loose-leaf ed, LexisNexis) at [HCR14.6.6(c)].
51 Black v ASB Bank Ltd, above n 50, at [83].
(c) B&F’s costs of collection, including legal fees (except litigation costs), in recovering the amounts payable; and
(d) indemnity costs of the proceeding, reasonably incurred.
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Palmer J
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