Euro Master Painting Services Limited v Ogden-O'Fee

[2025] NZHC 1328

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-647

[2025] NZHC 1328

BETWEEN

EURO MASTER PAINTING SERVICES LIMITED
Plaintiff

AND

VICKI JANE OGDEN-O’FEE and

MICHAEL JOHN OGDEN as trustees of the OGDEN-O’FEE FAMLY TRUST

Defendants

Hearing:	On the papers
Counsel:	G A Cooper for Plaintiff Defendants in person
Judgment:	26 May 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 May 2025 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

EURO MASTER PAINTING SERVICES LIMITED v OGDEN-O’FEE [2025] NZHC 1328 [26 May 2025]

[1]The plaintiff has obtained judgments against the defendants in a total sum of

$23,415.76, comprising $19,873.76 pursuant to a judgment entered 6 March 2025 and

$3,542.00 for costs dated 7 April 2025. Interest accrues on the sum of $19,873.76 at the rate of 2.5 per cent per month from 7 November 2024. The circumstances that led to the plaintiff obtaining these judgments is set out in my judgment of 7 April 2025.1

[2]        There remain claims between the parties yet to be resolved in the Disputes Tribunal. As I understand it, these are a claim by the plaintiff for costs incurred in pursuit of an adjudication under the Construction Contracts Act 2002 and a claim by the defendants for alleged defects in work undertaken for them by the plaintiff.

[3]        The defendants have applied for an order that the judgment debts obtained by the plaintiff be paid at a rate of $200 per week until the full amount is repaid or further order of the Court. The defendants say they are experiencing financial hardship. The application has been opposed by the plaintiff.

[4]        Upon receipt of the application and the plaintiff’s opposition to it, I issued a minute asking if either party requested a hearing on the application. The plaintiff’s lawyers responded that the application could be dealt with on the papers. The defendants, however, asked that the application be deferred until after the Disputes Tribunal hearing or alternatively transferred to the Disputes Tribunal to be dealt with there at a hearing that I understand is scheduled for 11 June 2025. They say the Disputes Tribunal is the appropriate forum to deal with the matter as the adjudicator is able to negotiate a settlement. They also say that the amount owing to the plaintiff may be affected by any determination of the Disputes Tribunal.

[5]        I am not prepared to adopt either course of action requested by the defendants. This is the defendants’ application and they are obliged to pursue it. If the defendants consider the application should and can be determined in the Disputes Tribunal, they may make the application in that forum.

1      Euro Master Painting Services Ltd v Ogden-O’Fee [2025] NZHC 811.

The evidence

[6]        The application is supported by an affidavit of Peter Eastmure, the accountant who acts for the defendants. He says the Ogden-O’Fee Family Trust is not currently trading and has minimal income, and that the defendants personally are self-employed and their respective businesses are operating under constrained financial conditions. Mr Eastmure says approaches have been made to two banks, but applications were declined. He says that as a result the Trust is not in a position to make a lump sum payment at this time and proposes to pay $200 per week, with a review date in September 2025 at which time an increase in payments would be considered if financial circumstances allow. Mr Eastmure also says the Trust has a claim before the Disputes Tribunal that may affect the overall debt position between the parties.

[7]        The plaintiff has filed an affidavit of its director, Lazlo Meszaros, who considers that there is no realistic prospect the Disputes Tribunal proceeding will reduce the judgment debts. Mr Meszaros says that the defendants have failed to disclose the Trust owns a $850,000 property which is directly relevant to the ability to pay the judgment debts. He also says the failure by the defendants to make payment of the judgment debts has caused significant financial strain on the plaintiff company. He identifies the reasons for that, including that it:

(a)put pressure on the plaintiff’s cashflow and ability to pay its own suppliers and staff;

(b)forced the plaintiff to utilise company and personal overdraft facilities incurring interest and fees; and

(c)limits the plaintiff’s ability to take on new projects.

[8]        Mr Meszaros does not consider payment at the rate of $200 per week is reasonable as it will take almost five years before the judgments and interest are repaid, imposing an unjust financial burden on the plaintiff.

My analysis

[9]        The defendants have failed to identify any statutory or other authority that provides the Court with the power to make the order they seek. The High Court can, under r 17.17 of the High Court Rules 2016, make an order that money owing under a judgment be paid by instalments but only following an examination of a party liable under a judgment carried out in accordance with that part of the Rules. Here no such examination has been sought or completed. I am unaware of any other basis for the Court to make the order sought.

[10]      Notwithstanding that difficulty, the application and accompanying affidavit does not provide sufficient evidence upon which the Court could justify making such an order in any event. On what is before me, the Trust has a substantial property asset and no information is provided as to how much equity is held in that property and why it could not be used as security for borrowings or sold to pay the judgment debts. There is also insufficient information about the trading position of the Trust and no disclosure of its financial accounts. The personal financial position of the defendant trustees is not directly relevant in the present context.

Result

[11]The defendants’ application is dismissed.

[12]      Any submissions on costs may be filed within 14 days and I will deal with the matter on the papers.

O G Paulsen Associate Judge

Solicitors:
Cavell Leitch, Christchurch