Easy Factors International Limited v Collins HC Auckland CIV 2010-476-000088

[2011] NZHC 1481

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-476-000088

BETWEEN  EASY FACTORS INTERNATIONAL LIMITED

Plaintiff

ANDSTEPHANIE COLLINS Defendant

Hearing:         27 May 2011

Appearances: M Wolff for the Plaintiff

G J Thwaite for the Defendant

Judgment:      27 May 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel

M Wolff, McMahon Butterworth Thompson Lawyers, Auckland – [email protected]

G Twaite, Barrister, Auckland – [email protected]:

EASY FACTORS INTERNATIONAL LIMITED V STEPHANIE COLLINS HC AK CIV 2010-476-000088 27

May 2011

[1]      The plaintiff (Easy Factors) seeks judgment for the sum of $30,000 which it says  was  a sum  agreed  by the parties on  7  December 2010  to  be paid  by the defendant (Mrs Collins) in full and final settlement of Easy Factors’ claim against her.

[2]      Easy Factors pleads that Mrs Collins agreed to pay the sum promptly and within approximately 30 days in consideration for which Easy Factors would discontinue this proceeding.

[3]      In its evidence in support of its application there is a copy of an email from counsel for Mrs Collins which unambiguously accepts the plaintiff’s offer to settle for the figure of $30,000 on that payment basis.

[4]      A later letter from that same counsel advised of Mrs Collins’ proposal to pay one third in the first week of January 2011, another third in early February 2011, and the balance in early March 2011.

[5]     Easy Factors’ solicitors responded stating the payment proposal was unacceptable  because  it  was  premised  upon  payment  being  made  promptly  “... within, say, 30 days of the date of acceptance ...”.

[6]      No defence has been filed to that claim nor has Mrs Collins filed any notice of opposition or affidavit in opposition to the summary judgment application.

[7]      This morning Mr Thwaite requested further time to meet the payment due. He filed an affidavit from Mrs Collins’ husband who explained efforts made with respect to obtaining those funds.    Mr Thwaite identified possible adverse consequences if judgment was entered against Mrs Collins.

[8]      Mr  Thwaite  also  suggested  that  the  plaintiff ’s  claim  was  procedurally defective because certain documents were not filed strictly in accordance with timetable orders made by the Court.

[9]      Mr Wolff for the plaintiff had instructions to press for judgment.

[10]     I informed Mr Thwaite the plaintiff was entitled to its judgment which was now long overdue.   Also there was no prejudice to Mrs Collins if the plaintiff’s documents had not been filed strictly in accordance with timetable directions.

[11]     I ordered that judgment be entered in favour of the plaintiff for the sum of

$30,000  together  with  costs  on  a  2B  basis  and  disbursements  as  fixed  by  the

Registrar.  I allowed a quarter of a day for today’s appearance.

[12]     At Mr Thwaite’s request, I agreed and ordered accordingly, that the order for judgment was not to take effect until 4:00pm on 7 June 2011 and I directed leave be reserved to either party to apply by memorandum for recall of this order in the event that the judgment and costs were paid by 5:00pm on 3 June 2011, or the parties come

to an arrangement for its payment.

Associate Judge Christiansen