As Base Limited v IMI Developments Limited - [2018] NZHC 511

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2016-419-000348 [2018] NZHC 511

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: 7 March 2018

Appearances:

S Ma Ching for the Plaintiffs D O’Neill for the Defendants

Judgment:

23 March 2018

INTERIM JUDGMENT OF JAGOSE J

This judgment is delivered by me on 23 March 2018 at 11.00am pursuant to r 11.5 of the High Court Rules.

.....................................................
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 v IMI DEVELOPMENTS LTD & ORS [2018] NZHC 511 [23 March 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

Introduction

[1] The plaintiffs advanced approximately $3.8m to the defendants in connection with Waikato property developments, of which they allege approximately $1.5m (including interest) remained outstanding as at 1 December 2017, and has not since been paid.

[2] The plaintiffs seek formal proof of their claim, after the defendants’ defence was struck out, and the defendants were debarred from taking further steps to defend the proceeding, because of their failure to meet ‘unless’ orders. Nonetheless, the defendants seek leave under HCR 15.9(3) to file a statement of defence, on the ground there will or may be a miscarriage of justice if judgment by default is entered.

[3]I deal with those cross-applications in reverse order.

Defendants’ application for leave to file defence

[4]HCR 15.9 provides:

15.9 Formal proof for other claims

(a)This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.

(b)The proceeding must be listed for formal proof and no notice is required to be given to the defendant.

(c)After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.

(d)The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading As Base Limited v IMI Developments Limited

Details

AGLC: As Base Limited v IMI Developments Limited [2018] NZHC 511
Case: [2018] NZHC 511
Decision Date: 23 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of As Base Limited v IMI Developments Limited involved a dispute over approximately $3.8 million advanced by the plaintiffs to the defendants in connection with Waikato property developments. The plaintiffs alleged that around $1.5 million (including interest) remained outstanding as of 1 December 2017. The plaintiffs sought formal proof of their claim, while the defendants applied for leave to file a statement of defence under HCR 15.9(3), arguing that a miscarriage of justice would occur if judgment by default was entered. The court examined the defendants' application under HCR 15.9 and their request for relief from the effect of the 'unless' order. The court found that the defendants' failure to meet the order was not excusable, and denied their application for leave to file a statement of defence.

The court then proceeded to consider the plaintiffs' application for formal proof of their claims. The plaintiffs raised three causes of action based on separate loan facilities that they alleged were extended to the defendants and secured by guarantees and indemnities. The court found that the IMI, KVM, and Matangi loans were proved, and awarded interest at rates calculated in accordance with the Interest on Money Claims Act 2016, but not exceeding 5 per cent per annum.

In conclusion, the court granted the plaintiffs' application for formal proof of their claims and ordered the defendants to pay the outstanding balances of the loans, along with interest and costs. The court directed the plaintiffs to file a new reconciliation of the sums outstanding on the loans, calculated in accordance with the judgment, together with draft orders for sealing. After filing of the further affidavit, judgment should issue in the plaintiffs' favour.

Orders