Drake v Rankin

[2013] NZHC 1545

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-000420 [2013] NZHC 1545

BETWEEN  CATHERINE MARIE DRAKE and INDEPENDENT TRUST COMPANY (2007) LIMITED

Plaintiffs

ANDMATHEW CHARLES RANKIN Defendant

Hearing:                   25 June 2013

Appearances:           D G Dewar for the Plaintiffs

M M van den Bergh for the Defendant

Judgment:                25 June 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors:

D Dewar, Thomas Dewar Sziranyi Letts, Lower Hutt

M van den Bergh, Upper Hutt Law, Upper Hutt

C M DRAKE and INDEPENDENT TRUST COMPANY (2007) LIMITED v M C RANKIN [2013] NZHC 1545 [25 June 2013]

[1]      The plaintiffs have the responsibility to prove that no reasonably arguable defence is available to the defendant.  The plaintiffs’ prima face case appears strong. The advance to the defendant was documented.

[2]      However,  the  affidavit  evidence  demonstrates  considerable  disagreement. The plaintiffs claim the amount noted in a Deed of Acknowledgment of Debt and gives evidence as well of additional advances.

[3]      The defendant says that nearly $450,000 has effectively been repaid. As well he says Ms Drake, a plaintiff trustee, by herself or her daughter has retained assets of the company.

[4]      In the mix of things is evidence of Ms Drake’s role as a director of the debtor company during the relevant period.  In that role she managed at least in part some of the records of account.

[5]      The defendant claims those records are inaccurate.  Indeed he says they may have been manipulated by Ms Drake.

[6]      Also in the mix of things is the fact that the defendant is married to but separated from the daughter of Ms Drake.  These proceedings arise in the aftermath of that separation.

[7]      Finally,  in  the  mix  is  the  fact  that  the  defendant  has  recently  filed  a constructive trust claim in the High Court concerning the house owned by Ms Drake that he and his wife occupied.  He says there was an expectation of an interest in that property due to direct and indirect contributions he made.

[8]      Of  course  the  plaintiff  rejects  all  of  these  allegations  and  claims  of  the defendant.

[9]      But is not appropriate for these disputes to be resolved at this time.   Mr Dewar for the plaintiffs encourages the Court to take a robust approach in what is essentially a  commercial  dispute.   But,  the Court  is  of the  view that  issues  of credibility need to be left to a trial hearing.

[10]     Also the trial court will expect some professional evidence to assist with an interpretation of the books of accounts.

[11]     Whilst superficially it appears some debt will be identified as owing by the defendant,  it  is  inappropriate  to  enter  judgment  as  to  liability when  it  is  quite impossible to fix a range within which a debt sum can fit.

Judgment

[12]     The application for summary judgment is dismissed.

[13]     It is not appropriate to fix costs until the parties’ issues have been fully

resolved.

[14]     The Court directs a telephone conference be scheduled at 9:00am on 4 July

2013 for the purpose of timetabling the proceeding to a trial.

Associate Judge Christiansen