Bell v Lal - [2012] NZHC 1698

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-005601 [2012] NZHC 1698

BETWEEN ELAINE CATHARINA BELL Plaintiff

ANDRAINA LAL First Defendant

ANDRENEE DEVINA SINA LAL Second Defendant

Hearing: 3 July 2012

Appearances: E St John for Plaintiff
K M Quinn for First and Second Defendants

Judgment: 13 July 2012

JUDGMENT OF GODDARD J

This judgment was delivered by Justice Goddard on
13 July 2012 at 5.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Palmer & Associates, P O Box 74062, Auckland 1546
Fax: (09) 630-6322
Rogers & Rutherford, P O Box 2330 Shortland Street, Auckland 1140
Fax: (09) 302-0389

Counsel: E St John, P O Box 105270, Auckland 1143
Fax: (09) 357-6034
K M Quinn, L22 Lumley Centre, Auckland 1010
Fax: (09) 307-8774 – Email: kellyquinn@bankside.co.nz

BELL V LAL HC AK CIV-2011-404-005601 [13 July 2012]

[1] Before the Court are three applications: an application for summary judgment and an application for a freezing order, both filed by the plaintiff; and an application by the defendants to stay a judgment of Woodhouse J delivered on 7 June
2012, dismissing the defendants’ protest to jurisdiction.[1]

[1] Bell v Lal [2012] NZHC 1264.

[2] In logical order of sequence the argument in support of the application for a stay of Woodhouse J’s judgment relating to jurisdiction proceeded first and occupied the bulk of hearing time.

[3] The background to all three applications is a claim for debt by the plaintiff in the sum of $430,000 plus interest. This comprises the balance owing on a loan of
$500,000 the plaintiff made to the defendants in September 2007. The history of that loan, as set out by the plaintiff in her affidavit evidence and as evidenced in email and other forms of communication between the plaintiff and the first and second defendants, was traversed in detail by Woodhouse J in his judgment. It is unnecessary to retraverse that same history in extenso here. It will suffice to briefly
set out the matters of significance that are detailed in the judgment:

A “Final agreement” between the parties was recorded in an email of 10

September 2007 to the plaintiff from the second defendant on behalf of both defendants. This set out the terms of the loan agreement, which was to be for
3 months at an interest rate of 24 per cent per annum. The security for the loan was stated in the agreement as:

Caveat over 7 Awarua Crescent, Orakei (we will cover your
solicitor’s costs for this)
Personal Guarantees by both Raina & Renee Lal

Both defendants were in Fiji at the time of signing the agreement. However,

the first defendant’s residence was in Auckland.

Each defendant also signed a personal guarantee, expressly acknowledging

the loan in the following terms:

The lender has agreed to lend to the Borrower who has promised to pay back the sum of NZ$500,000.00 (Five Hundred Thousand Dollars) cash together with interest at the rate of 24% per annum.

The…

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 Bell v Lal

Details

AGLC: Bell v Lal [2012] NZHC 1698
Case: [2012] NZHC 1698
Decision Date: 13 July 2012

CaseChat Overview and Summary

The case of Bell v Lal was heard before Justice Goddard in the High Court of New Zealand, Auckland Registry. The plaintiff, Elaine Bell, sought a summary judgment and a freezing order against the defendants, Andraina Lal and Rene Devaina Sina Lal, for a debt of $430,000 plus interest. The debt arose from a loan of $500,000 made to the defendants in September 2007. The defendants opposed the jurisdiction of the court and sought a stay of the proceedings pending their appeal. The legal issues included the jurisdiction of the court, the defendants' appeal against the previous judgment, and the plaintiff's applications for summary judgment and a freezing order. The court considered the arguments for and against a stay of proceedings, focusing on the defendants' late challenge to jurisdiction and the lack of prejudice to the plaintiff. The court also considered the application for a freezing order, noting the history of the loan and the security provided over a property in Auckland. The court dismissed the defendants' application for a stay of proceedings and granted the plaintiff's application for a freezing order over the property at 7 Awarua Crescent, Orakei, Auckland. The court adjourned the summary judgment application to allow the defendants to expedite their appeal and to file any opposition to the summary judgment.

The court's decision was based on the defendants' failure to provide a substantive defence to the plaintiff's claim and their late challenge to the jurisdiction of the court. The court also noted that the defendants had not made any payment towards the debt since early 2008, and that the plaintiff had provided an undertaking as to damages in relation to her application for a freezing order. The court reserved costs on a 2B basis, indicating that the defendants would be responsible for the plaintiff's costs if the appeal was unsuccessful. The final orders included a dismissal of the defendants' application for a stay of proceedings, the granting of the plaintiff's application for a freezing order over the Orakei property, and an adjournment of the summary judgment application to allow the defendants to expedite their appeal and file any opposition to the summary judgment.

Orders