Donut Express Limited (in liq) v Jaques

[2021] NZHC 1501

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-205

[2021] NZHC 1501

BETWEEN

DONUT EXPRESS LIMITED (IN LIQ)

Plaintiff

AND

KEITH JAQUES

First Defendant

NO NAME DONUTS LIMITED (formerly

Donut Express 2004 Limited) Second Defendant

Hearing:

22 June 2021

Appearances:

F A M Manning for the Plaintiff First Defendant in person

No appearance for second defendant

Judgment:

22 June 2021

EX TEMPORE JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This is a summary judgment application. The matter was called in the Wellington Associate Judge’s list at 10.00am today, at which time I heard from Mr Bell for the plaintiff and the first defendant, Mr Jaques.

[2]    The claim is made on behalf of Donut Express Ltd (in liquidation). It is for the enforcement of what is essentially a contractual debt. The debt was originally $67,500 but, as at the date on which the proceeding was commenced, the amount of the claim was $16,523.50 which was the residual debt.

[3]    Following the commencement of the proceeding, Mr Jaques, who has never denied his liability, paid the principal amount of $16,523.50 together with a claimed

DONUT EXPRESS LIMITED (IN LIQ) v JAQUES [2021] NZHC 1501 [22 June 2021]

amount of interest. What he had not paid by the time the matter was called before me in this morning’s list was the liquidators’ solicitor and client costs of pursuing this claim. These were payable contractually as Mr Jaques accepts. The amount involved was some $5,000 odd dollars.

[4]    I adjourned the matter to give the parties an opportunity to resolve things, as I was reluctant to enter summary judgment against Mr Jaques (or for that matter the second defendant) without them having had an opportunity to do so. I adjourned it on the basis that it would be re-called at 3.30 pm today.

[5]    When  the  matter  was  called  at  3.30  pm,  counsel  for  the  liquidators,  Ms Manning, who was standing in for Mr Bell, sought judgment for what remained. She acknowledged that Mr Jaques had paid the lion’s share of the costs but told me there was something in order of $1,200 still outstanding. When I made enquiries of Mr Jaques he explained that he had made contact with the liquidators’ solicitors, Thomas Dewar Sziranyi Letts, as I had suggested, spoken to Mr Bell, and that his understanding was that the liquidators were prepared to make a modest concession in relation to the costs, thus reducing what he had to pay by the $1,200 mentioned earlier. I am not sure precisely what position the liquidators take in relation to that, but, in the circumstances, I am not prepared to enter summary judgment against Mr Jaques and the second defendant, with the implications that would have for Mr Jaques for such a modest amount when on the face of things it would seem that he had now paid everything that he was lead to believe he needed to pay.

[6]    The plaintiff’s summary judgment application is therefore dismissed. There are no outstanding costs issues.

Associate Judge Johnston

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for plaintiff