Bank of New Zealand v Roxburgh

[2021] NZHC 1115

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-000123

[2021] NZHC 1115

BETWEEN

BANK OF NEW ZEALAND

Plaintiff

AND

DANIEL JAMES ROXBURGH

First Defendant

PATRICIA LOUISE ROXBURGH

Second Defendant

Hearing:	17 May 2021
Appearances:	C T Ottow for the Plaintiff
Judgment:	19 May 2021

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 19 May 2021 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Buddle Findlay, Whakatane

BANK OF NEW ZEALAND v ROXBURGH [2021] NZHC 1115 [19 May 2021]

[1]                 The plaintiff, Bank of New Zealand (the Bank) applies for summary judgment against the defendants, Daniel James Roxburgh and Patricia Louise Roxburgh, in relation to the Bank’s statement of claim dated 30 November 2020.

[2]                 On 30 May 2018, the second defendant was appointed as director of Monarch (2018) Limited (now in liquidation), the Company.

[3]                 On or about 30 July 2018, the Bank (as lender), the Company (as borrower) and the defendants (as guarantors) entered into a Business First Term Loan Facility Agreement (Term Loan), Business First Overdraft Facility (Overdraft Facility) and guarantee (Guarantee) upon the terms set out in the Facility Document dated

30 July 2018 (Facility Document), which incorporated by reference the BNZ Business Lending Master Terms and Conditions (Master Terms).

[4]                 The terms agreed by the defendants included a Guarantee from the defendants of all the obligations and indebtedness of the Company under the Facility Document, and under each Lending Document to which the Company became a party.

[5]                 On or about 13 November 2018, the Company provided the Bank with an indemnity (Indemnity) in exchange for the Bank entering into a guarantee of the Company’s lease.

[6]                 On 5 March 2020, by special resolution of the shareholders, the Company was put into receivership and Thomas Lee Rodewald was appointed receiver of the Company.

[7]                 The appointment of a receiver constituted an event of default under the Term Loan. As a result, the Company (as borrower) and the defendants (as guarantors) became obliged to repay, on demand, the total amount owing under the Term Loan, Overdraft Facility and Indemnity.

[8]                 On or about 7 July 2020 the Bank made formal demands against the defendants (as guarantors) for the outstanding amount owing to the Bank under the Overdraft Facility, Term Loan and Indemnity, of $433,644.50 plus ongoing interest and costs.

[9]                 The defendants failed to pay the amount outstanding under the Overdraft Facility, Term Loan and Indemnity, in breach of the Guarantee.

[10]On 14 July 2020 Ryan Eathorne was appointed liquidator of the company.

[11]              On 30 November 2020 the bank filed its statement of claim together with a notice of interlocutory application for summary judgment and an affidavit of Shane Andrew Kelly in support, sworn on 30 November 2020.

[12]              At the call of this application on 17 May 2021 Mr Anderson for the Bank confirmed that there have been no payments made by the defendants to the Bank and that the sum claimed in the statement of claim remains outstanding. There was no appearance by the defendants at the call, and they have not filed a notice of opposition.

[13]              The defendants have been duly served with the proceedings as confirmed in the affidavit of Chantal Terri Ottow, affirmed 12 May 2021.

[14]              I am satisfied, based on the statement of claim, application for summary judgment, and evidence in the affidavit of Shane Andrew Kelly, that the defendants have no defence to the Bank’s claim.

Result

[15]              I order that summary judgment is entered against the first and second defendants for:

(a)the sum of $433,644.50 claimed  in  the  statement  of  claim  dated  30 November 2020; and

(b)interest from 30 November 2020 up to the date of payment in full on the sum of:

(i)$299,165.03 at the rate of 10.18% pursuant to the commercial terms, Term Loan, Facility Document; clauses 5.2 and

18.4(a)(i), Master Terms; and s 22(2) of the Interest on Money Claims Act 2016;

(ii)$443.34, at the rate of 14.18% per annum pursuant to the commercial terms; Term Loan, Facility Document; clauses 5.2 and 18.4(a)(i), Master Terms; and s 22(2) of the Interest on Money Claims Act 2016;

(iii)$63,804.61 at the rate of 14.51% per annum pursuant to commercial terms; Overdraft Facility, Facility Document; clauses 5.2 and 18.4(a)(i), Master Terms; and s 22(2) of the Interest on Money Claims Act 2016;

(iv)$70,231.72 at the rate prescribed under the Interest on Money Claims Act 2016 pursuant to the Indemnity; and s 22(2) of the Interest on Money Claims Act 2016.

(c)costs of $7,114.50 on a solicitor - client basis, and disbursements of

$1,813.27, pursuant to clauses 15, 18.4(a)(ii) and 65.6, Master Terms as set out in the attached Schedule A.

Associate Judge Gardiner

SCHEDULE A

Costs on a solicitor-client basis (excluding GST)

Buddle Findlay invoice dated 12 May 2021  $7,114.50

Total solicitor-client costs  $7,114.50

Disbursements

Court filing fee – filing summary judgment application                   $1,173.91

Court filing fee – sealing order for summary judgment  $43.48

Process server fee – attempted service of claim documents                $485.00 on the defendants

LINZ and Court search fees  $110.88

Total disbursements  $1,813.27

TOTAL  $8,927.77