Christopher & Banks Ii Limited v Henry

[2018] NZHC 896

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000401

[2018] NZHC 896

BETWEEN

CHRISTOPHER & BANKS II LIMITED

First Plaintiff

HULJICH FAMILY TRUST NOMINEES LIMITED

Second Plaintiff

ALLIANCE EQUITIES LIMITED
Third Plaintiff

AND

GERALD HENRY

Defendant

Hearing:

1 May 2018

Appearances:

A Ho for Plaintiff

D Bennington for Defendant

Judgment:

1 May 2018

ORAL JUDGMENT OF VENNING J

Solicitors:           Gilbert Walker, Auckland

Duncan Cotterill, Auckland

CHRISTOPHER & BANKS II LIMITED v HENRY [2018] NZHC 896 [1 May 2018]

[1]                  This is an application for summary judgment. It is based on a guarantee provided by the defendant to support borrowing by an entity related to him.

[2]                  Initially the plaintiffs agreed to lend $2,425,000 to Results.com Limited. Results was obliged under that agreement to pay $193,7350 on 26 April 2017. It failed to make that payment. In around June 2017 Results, together with the plaintiffs and the defendant agreed in writing by way of deed to vary the earlier loan agreement. The effect of that variation was to waive Results’ April 2017 default subject to Results making repayments in accordance with the revised payment schedule. The defendant agreed to act as guarantor. He acknowledged the guarantee was a principal obligation.

[3]                  The June 2017 variation obliged Results to pay a sum of $475,028.74 by 19 November 2017. Results failed to make that payment. The parties then entered a further variation on or around 12 December 2017. In consideration of the plaintiffs entering that agreement it was agreed Results would pay the plaintiffs $50,000 by 12 December 2017. The sum remaining outstanding pursuant to the June 2017 variation was acknowledged as $550,000. Results agreed to pay that sum in full on or before 25 January 2017. Results paid the plaintiffs $50,000 by 12 December 2017 but failed to make the payment due on 25 January 2018.

[4]                  On or about 26 January 2018 the plaintiffs and the defendant executed a further deed recording that Results was indebted to the plaintiffs in the sum of $550,000 and that if Results did not pay the full amount owing to the plaintiffs by 5.00 pm on 16 February 2018 the defendant would, in accordance with the guarantee, pay the outstanding sum, interest at 15 per cent per annum, and costs of enforcement including legal costs on a solicitor/client basis. The defendant also agreed he would consent to judgment in any court by the plaintiffs against him.

[5]Results did not pay the money due on 16 February 2018, although a sum of

$50,000 was paid on 1 March 2018. The principal sum now due and owing to the plaintiffs is $500,000. The plaintiffs seek judgment for that sum against the defendant in reliance on the guarantee. They also seek interest and costs.

[6]                  The application for summary judgment was served on 16 March 2018 I am advised by counsel. It was served in accordance with the agreement provided in the loan and guarantee documentation, under which the defendant had appointed Duncan Cotterill, Solicitors, as agent to accept service of any notice, demand or proceedings.

[7]                  The plaintiffs seek summary judgment this morning. Ms Bennington has entered an appearance on behalf of the defendant. No papers have been filed on behalf of the defendant and she responsibly acknowledges that in terms of the agreement entered by Mr Henry he has acknowledged that he has no defence to the claim and that he will consent to judgment. Ms Bennington’s instructions, however, are to seek an adjournment for four weeks to enable him to make payment. She makes the point that substantial sums have been paid already and that what is sought to be recovered now is interest.

[8]                  While I acknowledge the points Ms Bennington makes Mr Henry entered the most recent document as guarantor and confirmed he has no defence and that he would consent to judgment. I see no point in further adjourning the matter. If the adjournment is sought to provide Mr Henry with time to arrange finance to pay the debt then that is a matter he can attend to even if judgment is entered. The plaintiffs should not be put to further cost of further unnecessary appearances in the Court related to the matter.

[9]                  I decline the application for adjournment and enter judgment for the plaintiffs in the sum of $500,000, together with interest of $2,938.36, being interest to 1 March 2018. The plaintiffs are also to have judgment for interest on the $500,000 calculated at 15 per cent per annum from 1 March 2018 to the date of judgment together with costs to be fixed on a reasonable solicitor/client basis.

[10]              The judgment is to lie in Court until 4.00 pm this Friday. Counsel for the plaintiffs is to file an affidavit of service confirming the service as advised and is also to file the costs memorandum detailing the interest and the costs sought to be included in the judgment sum.

Venning J