Busst v Stead

[2014] NZHC 112

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV2013-463-000485 [2014] NZHC 112

BETWEEN  BARRIE THOMAS BUSST Plaintiff

ANDKIM MAREE STEAD and VALERIE JANE MACKAY

Defendants

Hearing:                   10 February 2014

Appearances:           C Macklin for the Plaintiff

K A McDonald for the Defendants

Judgment:                11 February 2014

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

11.02.14 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

B T BUSST v K M STEAD and V J MACKAY [2014] NZHC 112 [11 February 2014]

[1]      The plaintiff seeks summary judgment upon his claim.  The defendants are the executrices and trustees in the estate of Evelyn Ann Busst.

[2]      In another proceeding the plaintiff had brought Property Law Act claims. The defendants were a party served in those proceedings.

[3]      On 14 May 2013 the plaintiff and the defendants entered into a settlement agreement.  It was agreed the sum of $360,000 would be paid to the plaintiff.  It did not provide for any limitation as to liability of the defendants to their capacity as executrices and trustees.  Nor was such limitation sought by the defendants or any other party.

[4]      It is not in dispute that the defendants became jointly and severally bound by the agreement in their personal capacities.

[5]      On or about 30 September 2013 the defendants failed to make payment under the agreement.

[6]      The plaintiff’s summary judgment application was served on or about 28

November 2013.   On or about 5 February 2014 the defendants filed a notice of opposition.  The primary ground for opposition was that the defendants had filed an application  for  leave  to  join  in  the  other  parties  who  were  signatories  to  the settlement agreement with the plaintiff.

[7]      The defendants’ notice of opposition was filed late and without leave being sought.   Regardless, it is clear that there is no real issue to be tried.   There is no arguable defence available.

[8]      For the reason submitted on behalf of the plaintiff the Court accepts it would be unreasonable, unjust and prejudicial if the hearing of the summary judgment application was delayed by third party issues.   The defendants are clearly liable under the settlement agreement.

Judgment

[9]      Summary judgment is granted to the plaintiff against the defendants both as to liability and quantum in the total amount of $386,270.71 comprising:

(a)       The principal settlement sum of $360,000; and

(b)      Interest of $15,743.21 for the period up to 10 February 2014; and

(c)       Costs of $8,955 plus disbursements of $1,572.50.

Associate Judge Christiansen