Bank of New Zealand v Hayman

[2018] NZHC 2390

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001459 [2018] NZHC 2390

BETWEEN

BANK OF NEW ZEALAND

Plaintiff

AND

PHOEBE LILIAN HAYMAN Defendant

Hearing:	11 September 2018
Appearances:	H Snell for the Plaintiff No appearance by or on behalf of the Defendant
Judgment:	11 September 2018

JUDGMENT OF WOOLFORD J

So licitors  /  Counsel:        

Buddle Findlay, Barristers & Solicitors, Auckland

BANK OF NEW ZEALAND v HAYMAN [2018] NZHC 2390 [11 September 2018]

[1]      This is an application for summary judgment by the Bank of New Zealand against Phoebe Lilian Hayman as guarantor of loans made to Seedling New Zealand Limited.  The application was filed on 11 July 2018.  It was served on the defendant by her solicitors on 6 August 2018.  No steps have been taken by her to defend the proceeding.

[2]      On or about 30 September 2011, the bank entered into an overdraft facility agreement with the company. The initial limit was $400,000. Between 20 April 2012 and 7 December 2013, the company entered into a further facility agreement with the bank for an additional $800,000. As a result, the bank required additional security and on or about 17 December 2013, the defendant gave a personal guarantee to the bank for the company’s indebtedness.

[3]      On or about 24 August 2017, the bank and the company entered into a company term loan.  The company term loan incorporated $200,000 of the facility under the overdraft facility agreement, which in turn was reduced from $400,000 to $200,000.

[4]      The company ceased making payments under the agreement on 27 April 2018. On 30 May 2018, by special resolution of its directors, the company was placed into liquidation.  As at 30 May 2018, the amount outstanding under the agreements was

$1,651,050.53. By letters, both dated 30 May 2018, the bank made formal demand on the liquidators of the company for repayment of $1,651,050.53 under the agreements and formal demand on the defendant as guarantor for $1,470,430 under the guarantee. Despite the demands, the defendant has failed or refused to pay the amounts outstanding under the agreements.

[5]      The evidence filed on behalf of the bank confirms that no payment to the bank has been made by the defendant.  The bank has received no further realisations of its security in the liquidation or receivership and the bank does not expect any realisations of  its  security  from the  liquidation  or  receivership  following  the  30  May  2018 demands.

[6]      The principles of an application for summary judgment are well known.  The defendant has no defence to the bank’s claims. She has not denied her liability in any way.  She has failed to pay the debt owing to the bank.

[7]      Accordingly, there will be judgment for the bank against Ms Hayman in the sum of $1,470,430, with interest on that sum from 31 May 2018 until the date of payment in full at the rate of 13.11 per cent per annum in terms of the guarantee.

[8]      In addition, solicitor/client costs of $2,524.40 and disbursements in the sum of

$1,217.39 are also awarded to the bank. These are to be paid by Ms Hayman.

Woolford J