154 Limited (Receiver of Income Appointed and in liquidation) v Bagley

[2012] NZHC 2781

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1748 [2012] NZHC 2781

BETWEEN  154 LIMITED (RECEIVER OF INCOME APPOINTED AND IN LIQUIDATION) Plaintiff

ANDROBERT JAMES BAGLEY First Defendant

ANDKERRI-JEAN SAYLES Second Defendant

Hearing:         23 October 2012 (Heard at Wellington)

Counsel:         A.L. Hill for plaintiff

No appearance for first defendant
K.J. Sayles - Second Defendant in person

Judgment:      24 October 2012

ORAL DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Morrison Kent, Lawyers, PO Box 10-035, Wellington

154 LIMITED (RECEIVER OF INCOME APPOINTED AND IN LIQUIDATION) V RJ BAGLEY HC WN CIV-2012-485-1748 [24 October 2012]

Introduction

[1]      Before the Court is an application for summary judgment brought by the plaintiff against the first defendant and the second defendant.

Application against First Defendant

[2]      So far as the application against the first defendant is concerned there is no appearance for the first defendant Robert James Bagley (Mr Bagley) today.  Nor has there been any Notice of Opposition to the summary judgment application filed by Mr Bagley nor any statement of defence to the proceeding against him.

[3]      That said, in my view, there seems no good reason why summary judgment should not be granted to the plaintiff against the first defendant Mr Bagley taking into account the matters raised in the plaintiff’s statement of claim, supporting affidavit and memoranda of counsel as to quantum dated 23 October 2012 and filed herein.

[4]      Summary judgment is now granted at this point therefore to the plaintiff against the first defendant, Robert James Bagley (only) for:

(a)       the principal sum claimed in the plaintiff’s statement of claim being

$364,309.93;

(b)       interest on the principal sum noted above, accrued to 27 July 2012 as

set out in counsel’s memorandum totalling $115,345.59; and

(c)       further  interest  thereon  from  28  July  2012  to  23  October  2012 totalling $12,297.12.

[5]      Further, costs are awarded to the plaintiff against the first defendant, Mr Bagley on a solicitor/client basis claimed in terms of the contractual arrangements between  the  parties  totalling  $8,054.60  together  with  disbursements  totalling

$1,493.65 each as set out in counsel’s memorandum.   Details of those costs and disbursements are also provided here in the 21 September 2012 affidavit of Laura Diane Tidley filed for the plaintiff herein.

[6]      That said, the total amount by way of summary judgment awarded against the first defendant Mr Bagley today is therefore $501,500.89.

[7]      That  disposes  of  the  summary  judgment  application  against  the  first defendant Mr Bagley.

Application against Second Defendant

[8]      As to the summary judgment application against the second defendant, Kerri- Jean Sayles, (Ms Sayles) she has filed a document headed “Affidavit of Kerri-Jean Sayles in Notice of Opposition for Summary Judgment” in this Court on 4 October

2012.

[9]      As best I can tell from a cursory consideration of that affidavit, Ms Sayles advances certain matters by way of defence to the summary judgment application. In particular, she contends that she had no understanding of the true position when she signed the guarantee of the lease in question.

[10]     It may be that there are other matters which Ms Sayles, the second defendant might also wish to raise in opposition to the summary judgment application.

[11]     That said, in my view it is appropriate that the application for summary judgment against the second defendant Ms Sayles is now set down for a hearing. The parties agree two hours are to be allowed for this purpose.

[12]     That said, a direction is now made that the summary judgment application against the second defendant Ms Sayles is now set down for hearing (2 hours are allowed) commencing at 10.00 am on 6 December 2012.

[13]     I repeat the comment made earlier when Ms Sayles appeared before me that the proceeding against her is a matter of some complexity as is her defence to that proceeding.  I urge her under all the circumstances here to obtain legal advice with respect to her defence/opposition and the hearing of the summary judgment application set for 6 December 2012.

‘Associate Judge D.I. Gendall’