Dempsey v South Island Investments Limited

[2024] NZHC 1025

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-016

[2024] NZHC 1025

BETWEEN

NEIL ALLEN DEMPSEY

Plaintiff

AND

SOUTH ISLAND INVESTMENTS LIMITED

First Defendant

KEVIN DAVID CARLIN

Second Defendant

Hearing:

24 April 2024

Appearances:

B B Gresson for Plaintiff

S I Donaldson for Defendants

Judgment:

1 May 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 1 May 2024 at 9.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

DEMPSEY v SOUTH ISLAND INVESTMENTS LIMITED [2024] NZHC 1025 [1 May 2024]

[1]                 This proceeding was issued by the plaintiff to recover a loan made to the first defendant and guaranteed by the second defendant. The proceeding was resolved by the making of a Tomlin Order by Associate Judge Lester on 17 October 2023.

[2]                 The judgment of Associate Judge Lester making the Tomlin order attached a settlement agreement between the parties dated 29 September 2023, the terms of which required, inter alia, that the defendants would make payment to Mr Dempsey’s solicitors’ trust account of $1 million by three instalments. The settlement agreement further provided that if any of the payments were not made then Mr Dempsey was entitled to immediate judgment for the sum of $1 million less any payments made in repayment of that sum.

[3]                 On 2 December 2023, the second defendant passed away. The executors of his estate are Scott Donaldson, director of Mactodd Lawyers, and Peter Truman, a partner in Deloitte in Dunedin.

[4]The payments under the settlement agreement have not been made.

[5]                 The case was called in the Associate Judge’s list on 24 April 2024 in relation to an application by the plaintiff for orders that:

(a)the executors of the estate of Mr Carlin be substituted for Mr Carlin as the second defendants in the proceeding; and

(b)the terms of the Tomlin Order issued on 17 October 2023 are carried into effect and judgment is issued in favour of the plaintiff for

$1 million.

[6]                 Prior to the hearing Mr Donaldson filed a helpful memorandum, noting that probate had been granted on Mr Carlin’s estate on 9 April 2024. He stated he had received instructions from the director of the first defendant, who advised the company had no ability to meet its obligations under the settlement agreement. In respect of Mr Carlin’s estate, the executors say there is no ability to meet the obligations under the settlement agreement. In those circumstances, Mr Donaldson, in his capacity as

counsel for both the first and second defendants, acknowledged the orders sought by the plaintiff should be granted.

[7]                 By consent, therefore, there shall be orders in terms of the plaintiff’s application.

Result

[8]The following orders are made:

(a)There shall be an order under r 4.52 of the High Court Rules 2016 substituting Scott Donaldson and Peter Truman, in their capacity as executors of the estate of Kevin David Carlin, as second defendants in this proceeding.

(b)Judgment is entered in favour of the plaintiff against the first and second defendants in the sum of $1 million.

[9]                 In the draft order submitted to the Court the plaintiff has not sought costs and so no order is made in that regard.

O G Paulsen Associate Judge

Solicitors:

Todd and Walker, Queenstown Mactodd Lawyers, Queenstown