De Vries v Bartercard Exchange Limited - [2017] NZHC 2625

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE

CIV 2017-485-425 [2017] NZHC 2625

BETWEEN
ANTHONY HARRY DE VRIES

Appellant

AND

BARTERCARD EXCHANGE LIMITED Respondent

Hearing: 24 October 2017

Counsel:

Appellant in Person
D G Dewar for Respondent

Judgment:

26 October 2017

JUDGMENT OF ELLIS J

[1] Mr de Vries appeals Judge Tompkins’ December 2016 decision declining his

application to set aside two judgments entered against him by default in 2011.1

Background

[2] On 22 September 2011 Bartercard Exchange Ltd (Bartercard) obtained two debt judgments against Mr de Vries in the Hutt Valley District Court. The first was for was for $179,772.42, and the second was for $170,308.56.2 Mr de Vries had taken
no steps to oppose the claims. Hence judgment was entered on each by default.

1 de Vries v Bartercard New Zealand Ltd [2016] NZDC 24811.
2 Respectively, Bartercard New Zealand Ltd v de Vries DC Auckland CIV-2011-32-396, 22
September 2011; and Bartercard New Zealand Ltd v de Vries DC Auckland CIV-2011-32-387,
22 September 2011.

DE VRIES v BARTERCARD EXCHANGE LTD [2017] NZHC 2625 [26 October 2017]

[3] The former judgment related to obligations incurred by Mr de Vries as guarantor of a company called Zoom Zoom Properties Ltd, which was put into liquidation on 12 July 2011. The latter related to Mr de Vries’ indebtedness as guarantor of a related company, Zoom Zoom Ltd, which was also put into liquidation in July 2011.

[4] Following entry of the judgments, Bartercard applied for an order for examination of Mr de Vries as to his means. That examination was conducted before a deputy registrar in the Lower Hutt District Court on 28 May 2012. In a formal report dated 30 May 2012, the Deputy Registrar recorded that, after assessing Mr de Vries’ income, expenditure, assets and liabilities, no order would be made. Mr de Vries was said to be unemployed and living on redundancy pay, and it was determined that he would be unable to meet any order for payment of the debt by instalments as he did not then have any income.3

[5] Since 2011 Mr de Vries has made a number of payments on account of the debts, although an offer by Bartercard to establish a formal monthly repayment arrangement had been declined by him on 12 April 2011. His co-guarantor, Mr Rogers, did agree to enter such an arrangement and payments were made by him pursuant to it until (as I understand it) sometime in 2015.4 Steps have subsequently been taken by Bartercard to have Mr Rogers adjudicated bankrupt, too.

[6] In 2013, Bartercard registered a charging order against a property in Lower Hutt registered in the name of Mr de Vries and his wife. Bartercard attempted to enforce that charging order in proceedings filed in this Court. Those proceedings were subsequently discontinued without an order for sale being made, as it was learned that that property was held by Mr and Mrs de Vries as trustees.…

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: [2017] NZHC 2625
Decision Date: 26 October 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Anthony Harry de Vries appealed against the decision of Judge Tompkins, who declined his application to set aside two default judgments entered against him in 2011 by Bartercard Exchange Limited. The judgments were for $179,772.42 and $170,308.56 respectively, arising from de Vries' role as guarantor for two companies that were liquidated in July 2011. De Vries did not contest the judgments, which were entered by default, and failed to take any steps to appeal them within the required time frame.

The legal issues before the court were whether the delay in challenging the judgments was reasonably explained, whether a substantial ground of defence had been disclosed, and whether Bartercard would suffer irreparable injury if the judgments were set aside. The court found that de Vries had not reasonably explained the delay, had not disclosed a substantial ground of defence, and that Bartercard would indeed suffer irreparable injury if the judgments were set aside.

De Vries argued that he had not contested the judgments due to stress and a misunderstanding of the consequences, and that there was a valid defence concerning the nature of the guarantees. However, the court held that despite any stress de Vries may have been under in 2011, the significant delay in challenging the judgments, coupled with his continued payments towards the debt, did not provide a reasonable explanation. Additionally, the court found that the guarantee was a personal guarantee, not a cross-guarantee, and that de Vries had not demonstrated a substantial ground of defence. The court concluded that setting aside the judgments would cause significant harm to Bartercard.

The appeal was dismissed, and Bartercard was awarded costs.

Orders