Bell v Lal

[2012] NZHC 1993

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-005601 [2012] NZHC 1993

BETWEEN  ELAINE CATHERINE BELL Plaintiff

ANDRAINA LAL First Defendant

ANDRENEE DEVINA SINA LAL Second Defendant

Hearing:         8 August 2012

Counsel:         E St John for the Plaintiff

K M Quinn (formally granted leave of the Court to withdraw and retire at the commencement of the hearing) for the Defendants

Judgment:      8 August 2012

(ORAL) JUDGMENT OF DUFFY J

Counsel:     E St John P O Box 105270 Auckland City Auckland 1143 for the Plaintiff

K M Quinn Level 22 Lumley Centre 88 Shortland Street Auckland 1010 for the

Defendants

Copies To:   Palmer  and Associates  Limited  (S  M  Palmer)  P  O  Box  74062  Greenlane

Auckland 1546 (DX CP32517)
Rogers  and  Rutherford  (S  D  Rutherford)  P  O  Box  2330  Shortland  Street

Auckland 1140 (DX CP27023)

BELL v LAL and ANOR HC AK CIV-2011-404-005601 [8 August 2012]

[1]      This summary judgment application is a claim for a debt by the plaintiff in the sum of $430,000, plus interest.  This comprises the balance owing on a loan of

$500,000 that the plaintiff made to the defendants in September 2007.   The application for summary judgment is not opposed.

[2]      Earlier on, the defendants filed a protest to jurisdiction.  They claimed that because the defendants were in Fiji at the time of signing the loan agreement, the debt was something that was to be dealt with by the Fijian Courts or, if not, that it should be dealt with in this Court, in accordance with Fijian law.   The protest to jurisdiction was dismissed by Woodhouse J in a judgment delivered on 7 June 2012 (see Bell v Lal HC Auckland CIV-2011-404-5601, 7 June 2012).   The defendants then filed an application to stay the judgment of Woodhouse J.  The stay application was dismissed by Goddard J on 13 July 2012 (see Bell v Lal HC Auckland CIV-

2011-404-5601, 13 July 2012).

[3]      Whilst  there  has  been  no  formal  appearance  by  the  defendants  today  to oppose the summary judgment application, as a matter of courtesy, their counsel appeared, advised me that he was without instructions and that he would not be participating in the hearing. Accordingly, he was granted leave to withdraw.

[4]      I have read the statement of claim, the application and plaintiff’s affidavit evidence.   It establishes that the defendants owe a debt to the plaintiff, which is presently payable and which has not been paid.  I am satisfied that the defendants have no defence to the plaintiff’s claim.   Accordingly, I find that the plaintiff is entitled to summary judgment against them.

[5]      Today, the plaintiff has provided me with a memorandum setting out the quantum of the debt.   The memorandum states that the principal outstanding was NZ$977,041.09 and the total judgment sum, excluding costs, is $1,077,247.10.  The plaintiff expressly noted in its memorandum on quantum that the defendants had reduced  the  debt  by  $70,000,  but  this  figure  was  not  then  deducted  from  the judgment sum sought.  Once the $70,000 payment that the defendants have already contributed towards the loan is taken into account, by my calculations, the judgment sum should be made up as follows:

Principal sum  $   500,000.00

plus interest on principal from 10 September

2007 to 31 August 2011 (1,451 days) at 24 per cent per annum

$   477,041.10

less $70,000 repayment  $     70,000.00

Sum outstanding as at 31 August 2011  $   907,041.10

plus interest on remaining principal sum of

$430,000 calculated from 1 September 2011 to 7 August 2012 (341 days) at 24 per cent per annum

$     96,414.34

plus disbursements

filing original document

filing three interlocutory applications service fee

$      1,329.20

$      2,175.00

$         287.50

Total judgment (excluding costs)  $1,007,247.14

[6]      Accordingly, judgment is entered against the defendants for $1,007,247.14. [7]        Costs are awarded to the plaintiff at category 2B of the High Court scale.

Duffy J