As Base Limited v IMI Developments Limited

[2018] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2016-419-000348 [2018] NZHC 1130

BETWEEN

AS BASE LIMITED

First Plaintiff

SCOTT BASE LIMITED
Second Plaintiff

AND

IMI DEVELOPMENTS LIMITED

First Defendant

ROTOTUNA VENTURES LIMITED
Second Defendant

cont .. /2

Hearing:	[On the papers]
Counsel:	S Ma Ching for the Plaintiffs D O’Neill for the Defendants
Judgment:	18 May 2018

FINAL JUDGMENT OF JAGOSE J

This judgment is delivered by me on 18 May 2018 at 4.45 pm pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Solicitors/Counsel:

Lee Salmon Long, Auckland
D M O’Neill, Barrister, Hamilton

Rick Williams Associates, Albany, North Shore City

AS BASE LTD & ANOR v IMI DEVELOPMENTS LTD & ORS - Final [2018] NZHC 1130 [18 May 2018]

…2

GRAEME MATANGI

Third Defendant

TRIG GROUP LIMITED
Fourth Defendant

TRIG HOLDINGS 2014 LIMITED
Fifth Defendant

TRIG DEVELOPMENTS (2011) LIMITED

Sixth Defendant

KVN DEVELOPMENTS LIMITED
Seventh Defendant

3GNT LIMITED
Eighth Defendant

GARY JOHN ILTON
Ninth Defendant

GARY JOHN ILTON AND KAREN ILTON AS TRUSTEES OF THE ILTON BUSINESS TRUST

Tenth Defendant

GREGORY NEAL ILTON
Eleventh Defendant

GREGORY NEAL ILTON AND VANESSA KAY MATANGI AS

TRUSTEES OF THE G & V ILTON BUSINESS TRUST

Twelfth Defendants

GRAEME SELWYN MATANGI, MELISSA BRIDGET MATANGI AND WAIRAU TRUSTEE LIMITED AS

TRUSTEES OF THE MGM TRUST
Thirteenth Defendants

[1]        My interim judgment of 23 March 2018 directed the plaintiffs to file and serve an affidavit exhibiting a new reconciliation of the sums outstanding on three loans, calculated in accordance with that judgment, together with draft orders for sealing.1

[2]        I anticipated judgment thereafter would issue in the plaintiffs’ favour for the outstanding balances of:

(a)the IMI loan jointly and severally against all defendants; and

(b)the KVM and Matangi loans jointly and severally against all defendants, with the exceptions of the thirteenth defendants’ Wairau Trustee Limited, and the other two thirteenth defendants being personally liable on those loans.

[3]        Further affidavits of Anthony Thomas Scott and Jade Lynette Silvester, both sworn 10 April 2018, have now been filed. Mr Scott’s affidavit, incorporating information for Ms Silvester’s affidavit, provides the new reconciliation.

[4]I therefore order:

(a)the defendants are jointly and severally liable to the first plaintiff for the outstanding balance of the IMI Loan, which, as of 10 April 2018, was $270,168.97 including interest and solicitor-client costs recoverable under the term loan agreement dated 14 September 2012 and deeds of guarantee and indemnity applicable to the IMI Loan;

(b)the defendants, with the exception of the third-named thirteenth defendant, are jointly and severally liable to the second plaintiff for:

(i)the outstanding balance of the KVM Loan, which, as of 10 April 2018, was $639,835.05 including solicitor-costs recoverable under the various deeds of guarantee and indemnity applicable

1      AS Base Ltd v IMI Developments Ltd [2018] NZHC 511. For clarity, I note the internal reference at para [47] of the interim judgment – which records my finding the three loans are proved – should refer to para [22](a)-(c).

to the KVM Loan, and interest calculated in accordance with paragraph [48] of the interim judgment of 23 March 2018;

(ii)the outstanding balance of the Matangi Loan, which, as of 10 April 2018, was $194,208.81 including interest and solicitor- costs recoverable under the term loan agreement dated 10 July 2015 and various deeds of guarantee and indemnity applicable to the Matangi Loan;

(c)interest shall continue to accrue on the outstanding loan balances from the date of this judgment until payment:

(i)in respect of the IMI and Matangi Loans, at the rate of 25% p.a. under the term loan agreements dated 14 September 2012 and 10 July 2015 respectively;

(ii)in respect of the KVM Loan, in accordance with paragraph [48] of the Court’s interim judgment dated 23 March 2018, namely at rates calculated under the Interest on Money Claims Act 2016 not exceeding 5% p.a.

—Jagose J