Curlyz Holdings Limited v IDH Trustees Limited

[2013] NZHC 2350

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-3701 [2013] NZHC 2350

BETWEEN  CURLYZ HOLDINGS LIMITED Plaintiff

ANDIDH TRUSTEES LIMITED Defendant

IAN DAVID HAY Second Defendant

Hearing:                   9 September 2013

Appearances:           Mr Matsis for the plaintiff

No appearance for defendants

Judgment:                9 September 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

CURLYZ HOLDINGS LIMITED v IDH TRUSTEES LIMITED [2013] NZHC 2350 [9 September 2013]

[1]      The plaintiff seeks rectification of the contract of loan that it entered into in December 2011 wherein the borrower was identified as “I D Hay Trustees Limited”. I agree that all of the indications on the evidence are that what was intended was that the loan agreement be with the company named “IDH Trustees Limited”, the defendant.  There is apparently no extant company by the name “ID Hay Trustees Limited”.   Contemporaneous documents suggest that the parties intended that the contract be with a company named as the defendant is and not as “ID Hay Trustees Limited”.  For example, the guarantee signed by the principal of the company, Mr I Hay,  who is  the second  defendant  referred  to  the obligations  of “IDH Trustees Limited”.  As well, the instructions for the drawdown of the loan were to pay the money into the account of “IDH Trustees Limited”.  There is sufficient evidence to suggest that the parties had come to an agreement that IDH Trustees Limited would be the borrowing party and that through a mistake the written documentation which they entered into did not reflect that intention.  I therefore make the order which is sought  in  paragraph  A  of  the  prayer  for  relief  following  paragraph  15  of  the statement of claim.

[2]      There will be judgment in favour of the plaintiff against the first defendant in the sum of $220,000.  There will also be judgment in favour of the plaintiff against the second defendant in the sum of $220,000.  In each case the defendants will pay interest at the rate of 10% per annum from 11 May 2013 to today’s date with the resulting figure being $7,293.15.  The solicitor/client costs which have been proved in evidence are $8,953.55 and that is the amount of solicitor/client costs that the

defendants are ordered to pay together with approved disbursements of $1,490.

J.P. Doogue

Associate Judge