Barrett v Fulivai

[2021] NZHC 2569

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000278

[2021] NZHC 2569

BETWEEN

CHRISTOPHER SEAN BARRETT

First Plaintiff

SAI LIMITED
Second Plaintiff

AND

DAVID FULIVAI also known as LORD FULIVAI

First Defendant

HELEN FULIVAI also known as LADY FULIVAI

Second Defendant

Hearing:	28 September 2021 (by VMR)
Appearances:	A H Waalkens QC for Plaintiffs No appearance for Defendants
Judgment:	29 September 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 29 September 2021 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Heaney & Partners, Auckland Counsel:  A H Waalkens QC, Auckland

M D Lloyd, Auckland

BARRETT v FULIVAI [2021] NZHC 2569 [29 September 2021]

[1]    On 18 February 2021 the plaintiffs issued proceedings against the defendants seeking to recover $170,000.00. In short the plaintiffs claimed that they had paid that sum to the defendants on the basis the defendants had represented they could arrange the grant of 99 year leases of land in Tonga to the plaintiffs and had agreed to do so in exchange for the payment of the $170,000.00. The plaintiffs raised a number of causes of action to support their claim for the recovery of the $170,000.00.

[2]    In addition the first plaintiff also sought to recover a further $50,000.00 advanced to the defendants for personal matters. The defendants filed a statement of defence.

[3]    During the course of the proceedings the defendants’ position has evolved. The defendants now admit they have no defence to the claim for $170,000.00 and also admit the first plaintiff has advanced various sums to them personally. The defendants admit that at least $21,500.00 was advanced by way of loan to them.

[4]    In light of the change of position the first plaintiff then applied for leave to seek summary judgment in respect of the first and fourth causes of action. That application was supported by a substantive affidavit by Mr Barrett.

[5]    The application for leave and for judgment was called before the Court on 28 September 2021. There was no appearance by or for the defendants. Having reviewed the documents on the file and the evidence of Mr Barrett the Court is satisfied that leave ought to be granted to the first plaintiff to seek summary judgment and further, that the defendants have no arguable defence to the first plaintiff’s claim for

$170,000.00 under the first cause of action. Nor do the defendants have any arguable defence to the first plaintiff’s claim for the sum of $46,700.00 being the total of the various sums paid by him to the defendants for their personal benefit.

[6]For those reasons the following orders are made:

(a)leave is granted to the first plaintiff to bring this application for summary judgment;

(b)there will be judgment for the first plaintiff against the defendants jointly and severally in the sum of $170,000.00, together with interest thereon from 1 January 2018, in the sum of $17,408.04; and

(c)in addition there will be judgment for the first plaintiff on the fourth cause of action in relation to the loans in the sum of $46,700.00 together with interest thereon in the sum of $393.56.

Costs

[7]    The first plaintiff is entitled to costs for the entire proceedings on a 2B basis. The first plaintiff is to have costs and disbursements in the sum of $18,869.00.

[8]    In total, judgment including costs and disbursements is entered for the first plaintiff against the defendants jointly and severally for $253,370.60.

Venning J