Abbott v Brownlee

[2013] NZHC 2445

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-000394 [2013] NZHC 2445

BETWEEN

KIM MICHELLE ABBOTT

Applicant

AND

GRAEME MAURICE BROWNLEE

First Respondent

The Trustees of the BROWNLEE FAMILY TRUST being UMK TRUSTEES (2007) LIMITED, GRAEME MAURICE BROWNLEE and KIM MICHELLE ABBOTT

Second Respondent

Hearing:

18 September 2013

Appearances:

C L Cook for Applicant

J G Ross for First Respondent - granted leave to withdraw First Respondent in Person

Judgment:

18 September 2013

INTERIM JUDGMENT OF VENNING J

Solicitors:             Cook Westenra Ltd, Whangarei

The Oaks Law Centre, Whangarei

Copyto:            J G Ross, Whangarei First Defendant

ABBOTT v BROWNLEE [2013] NZHC 2445 [18 September 2013]

[1]   The matter before this Court this morning is an application by Ms Abbott, for the first respondent Mr Brownlee to be held in contempt for failing to comply with an order made by Duffy J in this Court on 20 August 2013, requiring Mr Brownlee to pay the sum of $14,278 to a named ASB mortgage account by 22 August 2013.

[2]   At the outset of the hearing Mr Ross, who has represented Mr Brownlee so far, sought leave to withdraw as counsel and for his instructing solicitor to be granted leave to withdraw as the solicitor on record. Mr Brownlee is present in Court. I granted leave to Mr Ross and his instructing solicitor to withdraw. Until another solicitor enters on record for the first respondent the address for service of the first respondent is 258 Waiotira Road, RD8, Whangarei and email  [email protected]. Documents may be served on Mr Brownlee by documents being forwarded to that address and email.

[3]  It is unnecessary for the Court to recite the background to these proceedings. For present purposes they are sufficiently set out in the minute of Duffy J of 20 August 2013. The short point is that the company, Waipuke Farms Limited (WFL), has substantial borrowings from the ASB. It has a commitment to the bank to meet mortgage payments of $14,278 a month. In addition to the long-term borrowing, WFL also has an overdraft with a limit of $100,000.

[4]   In short, and without commenting on the reasons why this has come about, the overdraft has reached its limit of $100,000. The plaintiff’s concern is that Mr Brownlee has deliberately allowed the overdraft to reach its limit of $100,000 and has applied, to his own benefit, certain of the Fonterra milk proceeds. For that reason the application was made to the Court for interim injunction orders.

[5]   Having considered the papers before the Court, Duffy J made an order that Mr Brownlee pay the $14,278 due on 20 August to the ASB mortgage account 12- 3224-027732 no later than 5 pm 22 August 2013. That order was sealed and served.

[6] The mortgage instalment was paid but not by Mr Brownlee personally. The instalment was paid by application of funds from the overdraft account to meet the

mortgage payment commitment. The overdraft then reached its limit of $100,000 and in fact was overdrawn by $926. Mr Brownlee then personally repaid the $926.

[7] When the plaintiff/applicant and her advisers learnt that, they brought this application to have Mr Brownlee held in contempt.

[8] Mr Brownlee has explained his position to the Court.  It is that he and his then advisers considered that the obligation was to ensure that the mortgage payment due on 20 August was paid and it was paid. I have pointed out to Mr Brownlee that that was not the terms of the order made by the Court. The terms of the order made by the Court were that he was personally to pay the $14,278, rather than have WFL pay it by way of extending its overdraft to its limit. Because he had failed to personally make the payment he was before the Court this morning. I also explained to Mr Brownlee the possible outcomes of the breach of the order of the Court, namely the possibility of committal and/or sequestration of his personal bank accounts.

[9] After discussion Mr Brownlee has confirmed that he has sufficient money available in bank accounts controlled by him to make the payment of the $14,278 as was directed by the Court on 20 August 2013.

[10] For present purposes I accept that the reason Mr Brownlee did not pay the instalment personally may have been because of confusion on the part of him and his advisers as to the terms of the order, although I have to say the terms of the order are, on its face, clear.

[11] I do not propose to take the matter any further at this time. In reliance on Mr Brownlee’s indication that he will pay the $14,278 in accordance with the order that will redress the position and put matters back to where they should have been if the order had been complied with initially. Provided that occurs there will be no need to take this application for committal any further.

[12]    I therefore adjourn this application for committal on the following terms:

(a)Mr Brownlee is to pay the sum of $14,278 to the ASB mortgage account 12-3224-027732 by 4.00 pm Friday 20 August 2013.

(b)The application for committal is adjourned through for call on 18 October 2013. Provided Mr Brownlee has complied it can be struck out at that time.

(c)I reserve leave for the plaintiff to re-list the application on 24 hours notice in the event that the payment is not made by 4.00 pm on Friday 20 September 2013.

(d)To avoid further doubt I make it clear that it is expected that the proceeds of this month’s Fonterra cheque for WFL will be applied to meet the mortgage payment due on 20 September 2013, in addition to the above payment that Mr Brownlee is to personally make so that the ultimate effect will be a reduction in the overdraft which is currently sitting at its limit of $100,000.

[13] Further if, after the Fonterra cheque from the WFL platform is paid in there is any shortfall between that payment and the $14,278 required on 20 September 2013, Mr Brownlee is to make that difference up personally.

Costs

[14] The plaintiff brought this application because of Mr Brownlee’s default. I make an order for costs on a 2B basis limited to the application and appearance before the Court this morning (which I have noted at quarter of a day).

Venning J