Biomex Trustees Limited v Wilson - [2019] NZHC 1488

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-000021

[2019] NZHC 1488

BETWEEN
BIOMEX TRUSTEES LIMITED

Plaintiff

AND

PHILLIP JOHN WILSON

First Defendant

AND

TEAPOT ENTERPRISES (2008) LIMITED

Second Defendant

AND

P J CONTRACTING (NELSON) LIMITED

Third Defendant

AND

PAMELA JANE THOMSON

Fourth Defendant

Hearing: 27 June 2019

Appearances:

S Galbreath for Plaintiff

P J Bellamy for Defendants

Judgment:

27 June 2019

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] This is an application for summary judgment against four defendants. It arises from a settlement agreement on a civil case which was executed on 2 March 2017. It is said that none of the defendants have performed their obligations under the agreement. Judgment is sought for a monetary sum as specified in that agreement.

[2] This application was served on 9 April and called this morning as its first call. No notice of opposition was filed by any defendant. However, on 27 June Mr Bellamy, who, judging from emails attached to the affidavit in support of the application has

BIOMIX TRUSTEES LTD v PHILLIP JOHN WILSON [2019] NZHC 1488 [27 June 2019]

acted for all defendants throughout, filed a memorandum advising that he would seek an adjournment this morning to allow oppositions to be filed. The thrust of the request is that the first defendant, Mr P J Wilson, is suffering from a serious health issue which gives him periods when he is unable to attend to his affairs, and other periods when there is some improvement in his condition. It is backed up to a degree by a medical certificate from a doctor at the Tahunanui Medical Centre dated 25 June 2019.

[3] From this certificate it is clear that Mr Wilson suffers from the consequences of a severe nerve compression incident which took place in 2013. Since this time he has suffered from chronic pain and there has been difficulty managing that position. As well he suffers from the side effects of long term use of medications which he takes to help with pain issues. These affect his ability to concentrate and severely affect his ability to articulate and communicate in general. He has ongoing significant mood issues and depression due to these problems.

[4] The first defendant Mr Wilson is one of the two directors of the second defendant, Teapot Enterprises (2008) Limited. The other director is his wife, Pamela Jane Thomson who is the fourth defendant. She is the sole director of the third defendant.

[5] No evidence is provided as to why the second, third or fourth defendant has not taken any steps on this proceeding. The fourth defendant is in charge entirely of the third defendant and as a director has power to take steps on behalf of the second defendant. The explanation given for these three parties having omitted to take any steps on this proceeding is that it is the first defendant Mr Wilson who basically ran the operation from which the original litigation and…

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.

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Details

Case: [2019] NZHC 1488
Decision Date: 27 June 2019

CaseChat Overview and Summary

In the case of Biomex Trustees Limited v Wilson, the plaintiff, Biomex Trustees Limited, sought summary judgment against four defendants: Phillip John Wilson, Teapot Enterprises (2008) Limited, P J Contracting (Nelson) Limited, and Pamela Jane Thomson, arising from a settlement agreement dated 2 March 2017. The plaintiff sought a monetary sum as specified in the settlement agreement, claiming that the defendants had failed to meet their obligations under the agreement. The court was required to determine whether the plaintiff was entitled to summary judgment against all defendants and, if so, whether any of the defendants had a legitimate reason to oppose the application.

The court found that there was an arguable case that all defendants had failed to comply with the settlement agreement, and that the plaintiff was entitled to enforce the agreement. The court held that the second, third, and fourth defendants had not provided any valid reason for not opposing the application, and that the plaintiff had made reasonable attempts to enforce the agreement. The court noted that the first defendant, Phillip John Wilson, suffered from significant health issues, but found that the adjournment request was not sufficiently justified as the defendants had ample time to file oppositions. The court granted judgment against the second, third, and fourth defendants, and adjourned the claim against the first defendant to allow him more time to review his rights.

The court's final orders were that judgment be entered against the second to fourth defendants on the terms set out in the plaintiff's memorandum of counsel, with costs and disbursements awarded in accordance with the memorandum of counsel dated 27 June. The claim against the first defendant was adjourned to the next call of the case on 8 August 2019, with strict deadlines for the filing and service of any notice of opposition and affidavits.

Orders