Carr v Humphries - [2012] NZHC 913

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2006-412-000513 [2012] NZHC 913

BETWEEN EWAN ROBERT CARR Plaintiff

ANDRODNEY JOHN HUMPHRIES Defendant

Hearing: (Determined on memoranda filed) (Heard at Dunedin)

Appearances: J E Bayley for Plaintiff
A R Gilchrist for Defendant

Judgment: 4 May 2012

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to interest on completion of contract to be specifically performed

Background

[1] This is an application by Mr Carr, as judgment creditor, for further directions in relation to the execution and implementation of a summary judgment.

[2] The parties have been in litigation for close to six years.

[3] In the first year, on 16 November 2006, the plaintiff was awarded summary judgment. The Court ordered:

(1)That the defendant do perform his obligations arising under the Deed of Assignment between the parties by:

(a) Procuring that Awataierei Holdings Ltd forthwith provide the plaintiff with a statement of the amount (calculated strictly in

CARR V HUMPHRIES HC DUN CIV-2006-412-000513 [4 May 2012]

accordance with clause 1.2(a) of the Deed of Assignment of Loan) which is payable in respect of the transfer of the shares in Brookside Properties Ltd to the plaintiff as at 30 November 2006;

(b) Procuring the release by 30 November 2006 of any and all existing securities over the shares in Brookside Properties Ltd, and over the assets of that company;

(c) Procuring the transfer of the plaintiff on 30 November 2006 of the shares in Brookside Properties Ltd in consideration for the plaintiff’s payment to Awataieri Holdings Ltd of the amount required to settle.

(2) Costs of $21,520.00 on a 2C basis in accordance with the attached

Schedule 1.

(3) Disbursements of $1,572.75 in accordance with the attached Schedule

2.

(4) That the Registrar of the Court at Dunedin may execute any documents required to give effect to this order in the event the defendant fails to do so.

(5) That leave is reserved to the plaintiff to further apply, should any matters relating to execution or implementation of these orders arise.

[4] I will refer to the deed of the assignment of loan as “the deed”. The order was in part made to give effect to the provisions of the deed which required the transfer of all the shares in Brookside Properties Ltd (“Brookside”) from Awataieri Holdings Ltd (“Awataieri”) to Mr Carr.

[5] Brookside owns a property known as “the Styx”, which is mortgaged to the

Bank of New Zealand. Awataieri is associated with Mr Humphries’ interests. [6] The transfer under the deed was not to occur until:

(a) Mr Carr’s trust assigned an advance account to a company associated with Mr Humphries’ interests; and

(b)Mr Carr paid to Awataieri the sum of $140,000, being the amount of the Bank of New Zealand loan, together with all interest from the date of the advance.

[7] Upon those events, security over the assets of Brookside was to be released and the shares transferred unencumbered.

[8] Mr Carr effected the assignment and part performed the deed. 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.

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Details

Case: [2012] NZHC 913
Decision Date: 4 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Dunedin Registry, Ewan Robert Carr, the plaintiff, filed an application against Rodney John Humphries, the defendant, concerning the execution and implementation of a summary judgment previously awarded to Carr. The crux of the dispute was the calculation of interest on a $140,000 loan that Carr was required to pay to Humphries as part of a transfer of shares in Brookside Properties Ltd. Carr argued that the interest should be calculated up until 30 November 2006, in line with the original court order, while Humphries contended that the interest should continue to accrue until the loan was repaid to the Bank of New Zealand, which was in September 2010.

The central legal issue the court had to resolve was the correct period for which interest should be calculated on the $140,000 loan. Carr's position was that the interest should only be calculated up to the date specified in the court's original order, 30 November 2006, as this was the date by which the transfer of shares was to be completed. Humphries, on the other hand, argued that the interest should be calculated up until the loan was actually repaid to the Bank of New Zealand, which was in September 2010. The court needed to determine whether the doctrine of merger applied, which would mean that the contractual obligation became part of the judgment, or whether the original contractual terms still applied.

The court found in favour of Carr, ruling that the interest should indeed be calculated only up until 30 November 2006, as specified in the original court order. The court held that the order was clear and that Humphries was not entitled to additional interest caused by the delay he had instigated through his appeals and other legal steps. The court emphasised that the exercise of appeal rights does not, without further order, alter the financial consequences of an extant court order. The court made specific directions to ensure the settlement ordered in 2006 would be executed within a defined timeframe, including the calculation of interest up to 30 November 2006.

In relation to the costs of the additional directions, the court ordered that the defendant pay $1,128.00 in costs to the plaintiff, together with disbursements to be fixed by the Registrar.

Orders