Biomex Trustees Limited v Wilson
[2019] NZHC 1488
•27 June 2019
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 the settlement arose.
[6] Whilst in the case of tightly held companies and small to medium business enterprises, that is not infrequently the case, nonetheless the contractual obligations in the settlement agreement were readily assumed by all four parties and have not been complied with even to a minor degree. The affidavit in support of the application annexes a good number of emails which show ongoing attempts by the plaintiff to enforce its rights under the agreement, all of which were met with various excuses or reasons for non-compliance but were not met with any action.
[7] It is plain from this correspondence that there is an arguable case that all of the defendants have simply been putting off the consequences of complying with their obligations. The plaintiff freely entered this agreement as well and is entitled to enforce it. Now the plaintiff is faced with yet another reason for the matter not proceeding.
[8] Two and a half months have gone by since the proceedings were served. I am unable to accept that there is any basis at all for any of the second to fourth defendants inclusive not having taken any steps to oppose this application if indeed they have any basis for doing so. I will return to the position of the first defendant in a moment.
[9] When I asked Mr Bellamy whether he had any instructions in relation to what defence there might be to this claim which is based on a simple settlement contract, he indicated that there may be some issues around whether or not the plaintiff has performed its side of the bargain. Some of these issues are raised in the correspondence and I had a chance to review them. There does not on the face of it appear to be any substance in them, rather the clear thrust of the correspondence is that the defendants have failed to comply with their obligations and I have not discerned any basis of any substance at all alleging that the plaintiff is non-compliant as a reason for the defendants having simply failed to do what they were required to do.
[10] I therefore find no reason at all to allow further time by way of an adjournment for any of the second to fourth defendants inclusive to defend this case and there will be judgment accordingly.
[11] So far as the first defendant is concerned, I accept that as this is the first call and as he plainly suffers from significant physical health problems, a little further time for him to look at his rights would be just. I balance his interests against those of the plaintiff and I find that it just serves justice for a little more time to be given. However this is a very close call because the evidence stops short of genuinely showing that there could not have been more effort put into getting instructions, and at least filing a notice of opposition setting out the basis on which the plaintiff might find itself facing a defence, even if an affidavit could not be put together in the last two and a half months.
[12] In this respect I note the advice of the doctor that the problems Mr Wilson faces have been going on since 2013 which is approximately six years ago, depending on when the original cause of the problems occurred that year. It is also clear that his health problems are always with Mr Wilson and whilst I take into account that Mr Bellamy has informed the Court that he has periods when he is better and periods when he is not, it does seem to me that doing as the doctor suggests and waiting a period until the problems go away is at best unrealistic.
[13] So far as Mr Wilson is concerned there will be an adjournment to the next call of this case which will be on 8 August 2019 at 11.00 am. It is not likely that the Court will adjourn the matter any further on that date unless the position is materially different from that which now presents itself to the Court. Any notice of opposition and affidavit must be filed and served by 12 July, and any affidavit in reply by 26 July.
[14] Judgment is entered against the second to fourth defendants inclusive on the terms set out in para 9 of the memorandum of counsel for the plaintiff dated 25 June 2019, save that costs and disbursements are awarded in accordance with the memorandum of counsel dated 27 June.
[15]The claim against the first defendant is adjourned as above.
Associate Judge Matthews
Solicitors:
Duncan Cotterill, Nelson Philip Bellamy, Nelson
0
0