General Finance Limited v Serepisos

[2018] NZHC 541

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2016-485-835

[2018] NZHC 541

BETWEEN

GENERAL FINANCE LIMITED

Plaintiff

AND

ALLIKI SEREPISOS

Defendant

Hearing:	5 March 2018
Counsel:	S O McAnally for Plaintiff J C La Hatte for Defendant
Judgment:	26 March 2018

JUDGMENT OF ELLIS J

[1]    On 13 April 2017, Associate Judge Smith entered summary judgment in favour of General Finance Limited (GFL) and against Mrs Serepisos in the sum of $50,000.1 That $50,000 represented part of a total claim for $294,667.59, being what was then the outstanding amount of Mrs Serepisos’ debt to GFL, together with interest and costs, after a mortgagee sale of an apartment owned by her.

[2]    The Associate Judge did not grant summary judgment in the full amount because he had formed the view that Mrs Serepisos had an arguable defence or counterclaim, namely that GFL had failed to discharge its duty under s 176 of the Property Law Act 2007 (the PLA) to take reasonable care to obtain the best price reasonably obtainable when it sold the apartment, and that it had unjustifiably delayed in selling the property.² The $50,000 for which summary judgment was entered was based

1      General Finance Ltd v Serepisos [2017] NZHC 749.

2 At [94].

GENERAL FINANCE LTD v SEREPISOS [2018] NZHC 541 [26 March 2018]

on the Associate Judge’s calculation of the amount that would still have been owing even if Mrs Serepisos succeeded in establishing a PLA breach at trial.³

[3]    The trial on the remaining issues was scheduled to be heard by me on 5 and       6 March 2017.

Background

[4]    The general factual  outline  which  follows  is  largely  taken  from  Associate Judge Smith’s judgment.

The loan agreements and Mrs Serepisos’ defaults

[5]    On 5 February 2014, GFL entered into a term loan agreement for $412,030 with Mrs Serepisos. That sum comprised a $400,000 loan, $12,000 in legal fees and a $30 fee for loan documentation. On 16 May 2014, there was a further advance of $62,200. The total amount of the advance ($474 ,230) was repayable on 5 February 2015. The advances were secured by a first ranking mortgage over a property owned by Mrs Serepisos, namely unit 30/30 Tory Street, Wellington.

[6]    Attached to the mortgage proposal that was signed by Mrs Serepisos was a declaration. This declaration was also signed be her and stated:

For the benefit of the creditor, the debtor declares, pursuant to s 14 of the Credit Contracts and Consumer Finance Act 2003, that the credit to be provided to the debtor, by the creditor, under the credit contract to be entered into, is to be used by the debtor primarily for business of investment purposes (or for both purposes).

The Debtor/Borrower confirms He/She has read the above declaration.

IMPORTANT

You should not sign this declaration unless the loan is primarily for business of investment purposes

[7]    The loans provided for interest 21.45 per cent (reduced to 11.45 per cent if payment was made within seven days of the due date). Interest was to be paid monthly, with the first payment on 5 March 2014.

3 At [101].

[8]    There has never been any dispute that Mrs Serepisos failed to make any interest payments under the mortgage, and failed to make any repayments when the advances fell due. Nor did she pay any Wellington City Council rates on the property or any Body Corporate levies. GFL later incurred various expenses in enforcing its security under the mortgage.

The mortgagee sale

[9]    In September 2014, GFL issued a PLA notice to Mrs Serepisos. There was no challenge to the validity of the notice, which expired unremedied. GFL then set about the mortgagee sale process.

[10]   GFL obtained a valuation report on the property in early November 2014. The evidence before the Associate Judge was that the valuation figure was $750,000 on the basis of an open market sale by a vendor, but as little as $525,000 if sold by mortgagee sale. The valuer later revised these figures to $700,000 and $500,000 respectively, because of the unusually high Body Corporate levies.

[11]   On 2 April 2015, an offer was received on the property from a Ms Denard. The offer was for $600,000, but was “heavily conditional”. It was rejected by GFL. An offer of $390,000 from another party was also rejected. Ms Denard then made another offer of $630,000, with a settlement date of 31 July 2015. That offer was accepted.

[12]   Prior to settlement, GFL asked Mrs Serepisos’ son, Eleftherios (Terry), who had been a tenant in the apartment, to make arrangements to remove his personal effects from it. The evidence before the Associate Judge was that the property had been sold to Ms Denard with vacant possession.

[13]   In mid-July, GFL learned that Mr Serepisos had not removed his effects from the property. GFL became concerned that he might interfere with the sale. GFL had the locks changed, in order to facilitate the chance of an orderly settlement. GFL also undertook repairs to a broken window at the property, and removed some personal items from the apartment. It incurred costs totalling $4,867.07 in taking those steps.

[14]   As things transpired, Ms Denard failed to settle on 31 July 2015. GFL pursued her, but to no avail. In the end, GFL cancelled the contract and obtained judgment in the District Court judgment against Ms Denard for the deposit, which was said to be for

$63,000.

[15]   GFL received further offers on the property. An offer of $412,000 was made on 8 October 2015, and an offer of $550,000 was made on 12 November 2015. The latter resulted in a conditional agreement for sale at $590,000, but ultimately the conditions were not satisfied. A further offer for $400,000 was received on 29 March 2016. GFL made a counter-offer of $580,000, but that was not accepted.

[16]   On 3 May 2016, GFL received a revised offer of $580,000 from the party who had made the offer in October 2015. This offer was accepted by GFL. This time no difficulties arose, and the sale was settled on 31 May 2016.

[17]   After deducting $54,580.55 from the sale proceeds to pay arrears of Body Corporate levies, and legal and other costs, the net proceeds received by GFL following the sale were $497,989.49. By that time the debt owed by Mrs Serepisos had ballooned to over $700,000. After subtracting the net proceeds of sale from that amount, the balance owing by her as at 31 May 2016 was $274,954.83.

[18]   GFL made demands for payment on 21 July 2016 and 30 August 2016. No payments were made in response to those demands.

The defence and counterclaim

[19]   As I have already indicated, Mrs Serepisos’ defence was based on an allegation that GFL had breached s 176 of the PLA. The evidence before the Associate Judge about that was set out in his judgment between [32] and [51]. For present purposes, it suffices to note that Mr Serepisos’ evidence was that:

(a)In about October 2014, he agreed with Mr Cairns (a director of GFL) that the property would be listed for sale with Paula Muollo of Harcourts in Wellington.

(b)After Ms Denard’s failure to settle the first agreement for sale and purchase, GFL did not pursue her with sufficient speed or vigour and they failed actively to keep marketing the property; by April/May of 2016 (he said) there had been no marketing of the property for almost a year.

(c)At around this time (April/May 2016) he was approached by a friend, Mr Khusal, who said he had a friend (Mr Chin) who was interested in the property and a meeting was arranged with Mr Khusal and Mr Chin.

(d)Prior to that meeting he had provided an appraisal to Mr Chin, which had been prepared by Harcourts in 2014, indicating the property was valued at $955,000.

(e)Because  it  was  common  knowledge  that  properties  values   in New Zealand had gone up since 2014, Mr Chin would have known that the 2016 value would likely be higher than $955,000.

(f)He called Mr Schlatter from SAL Mortgages, and  asked him to  let  Mr Cairns know that he had a serious potential buyer who would go unconditional immediately and settle quickly (subject to the buyer viewing the property).

(g)Mr Cairns said that he was not interested in showing this buyer through the property, and was not interested in talking to Mr Serepisos about it. Mr Cairns told Mr Serepisos to contact Ms Muollo.

(h)He then spoke to Ms Muollo, and told her that Mr Chin was prepared to go unconditional, but first needed to view the property. Ms Muollo told him that she had not been in contact with Mr Cairns in months, and that she did not have a key to get into the property, as GFL had changed the locks a second time.

(i)He then contacted Mr Schlatter again, and asked him to relay the message back to Mr Cairns that Mr Chin could not be shown through the property as Ms Muollo did not have the keys. He says that Mr Cairns simply refused to speak to him.

(j)The property was ultimately sold to the ultimate purchaser for much less than Mr Chin would have paid and for $50,000 than had been offered by Ms Denard.

[20]   Associate Judge Smith also had before him affidavits from Mr Khushal and Mr Chin. Mr Khushal deposed that:

(a)on 5 May 2016 Mr Serepisos told him that the property was up for sale

and could be purchased at a good price;

(b)he then contacted Mr Chin, who was a friend of his, and told him that the property was "going at a good price, under valuation".

(c)he met with Mr Serepisos and Mr Chin at a house in  Miramar on       5 May 2016, where he asked Mr Serepisos to do whatever was necessary to get a key, or otherwise arrange entry into the property so that Mr Chin could have a look at it; and

(d)he was present when Mr Serepisos telephoned Ms Muollo and that    Mr Serepisos put the call on  speaker  phone;  he  generally  confirmed Mr Serepisos’ account of the conversation.

[21]Mr Chin deposed that:

(a)he had not met Mr Serepisos before the meeting on 5 May 2016 but was interested in purchasing a property as a residence for his family;

(b)he was shown photographs of the property at the meeting, as well as the Harcourts’ 2014 appraisal of $955,000;

(c)Mr Serepisos had a draft agreement for sale and purchase drawn up at the meeting, although it was not complete;

(d)he was “very interested in the apartment” and told Mr Serepisos that subject to him viewing the property and being satisfied with it, he would be willing to enter into an agreement;

(e)he asked Mr Serepisos to arrange access and this prompted Mr Serepisos to call Ms Muollo; and

(f)the call was on speaker phone and that he heard Mr Serepisos ask for a key and Ms Muollo's reply that she did not have a key.

[22]   Mr Chin said that “except that the price was not set in concrete at that meeting”, he was willing to discuss an offer up to $800,000. He says that he would have been able to pay a deposit and then pursue mortgage finance. In support of that he produced a statement of his assets and liabilities showing what appeared to be a substantial excess in the value of assets over liabilities. He said he could not take the matter further because he could not get into the property to inspect it.

[23]   The accounts given by Messrs Serepisos, Khushal and Chin were refuted by GFL, through an affidavit field in reply by Mr Cairns.

Associate Judge Smith’s decision on the summary judgment application

[24]   As I have said, the Associate Judge largely declined the application for summary judgment. Based on the evidence of Messrs Serepisos, Khushal and Chin he concluded that Mrs Serepisos might have an arguable counterclaim under s 176.

[25]   The only other aspect of the Associate Judge’s decision that needs to be noted here is his conclusion that there was no merit in Mrs Serepisos’ claim regarding delay. Mrs Serepisos claimed that the 21-month delay between GFL taking possession of the property and the eventual settlement was so great that GFL breached a duty owed to her to take reasonable care not to erode any equity she might have in the property (or

increase her liability by way of additional penalties and costs). In finding that this claim was not arguable, he said:4

… The evidence demonstrates that a number of offers were received throughout the 21 month period, and of course General Finance did succeed in obtaining a buyer at a price of $630,000 (Ms Denard), with settlement scheduled for 31 July 2015. The notice under the PLA had only been issued in November 2014,  and  I  do  not  consider  it  reasonably  arguable  for  Ms Serepisos that the delay before the Denard sale was achieved was unreasonable. In saying that, I bear in mind Mr Cairns’ evidence about some of the negative aspects of the property, including no carpark, “leaky” issues, and the absence of a required building consent.

[105] There is no basis in the evidence to attribute to General Finance any blame for Ms Denard’s failure to complete the contract on 31 July 2015, and I think General Finance must have been entitled to a reasonable period of time after that default to consider its options. Further offers were received in October and November of 2015, and in March 2016, but none of them resulted in a sale.

[106] It appears on the evidence that General Finance was actively marketing the property until it was eventually sold, and allowing for the difficulties arising from the property’s negative features to which I have alluded I conclude that there is no evidential basis for Ms Serepisos’ delay allegation. I accordingly find for General Finance on issue (2).

The hearing before me

[26]   Before dealing with the merits of GFL’s claim, it is necessary to record two matters of process that arose. The first relates to a late application to amend the defence and counterclaim. The second relates to the state of the evidence.

The application to amend

[27]   On 7 July 2017, Associate Judge Smith fixed 3 November 2017 as the close of pleadings  date.    On  18  July  2017,  the  5  March  trial  date  was  fixed.    On     28 September 2017, the Associate Judge refused an application by Mrs Serepisos for particular discovery and awarded costs against her.

[28]   On 9 February 2018, counsel for Mrs Serepisos filed a memorandum advising that she wished to file an amended statement of defence and counterclaim, and proposed a telephone conference. On 12 February, counsel for GFL filed a

4      General Finance Ltd v Serepisos, above n 1, at [104] – [106].

memorandum objecting and submitting that an application for leave was required. Neither of those memoranda were referred to a Judge.

[29]   On 19 February, an application for leave was filed. A notice of opposition was filed on 21 February. These were  not  referred  to  me  until  28  February  2018  (two working days before the hearing). I then issued a minute inquiring whether counsel considered that the application could be dealt with at the beginning of the hearing or whether they wished it somehow to be determined before then. Counsel were agreed that it could be dealt with on 5 March.

[30]   The substantive part of the proposed amendment would have introduced the following new pleadings:

9.          The Plaintiff claimed the sum of $12,000 for legal fees on the original transaction but pursuant to section 45 of the Credit Contracts and Consumer Finance Act 2003, the Plaintiff may only claim the actual amount payable for the fees, and the Defendant accordingly seeks a set off for any sum in excess of the actual legal fees incurred.

10.        The interest rate claimed by the Plaintiff for default is 21.45%, which constitutes a penalty and is therefore unenforceable. The Defendant seeks a set off for interest which is oppressive and which has been charged to her account.

11.        The Plaintiff has not proved compliance with section 44B of the Credit Contracts and Consumer Finance Act 2003, to demonstrate that the fees are not unreasonable in terms of the Code. To the extent that the fees are unreasonable, the Defendant seeks a set off for all unreasonable fees.

[31]   I heard argument on the application at the beginning of the hearing. I then declined leave to amend, saying that I would give my reasons in this judgment. Those reasons follow here.

[32]   In Elders Pastoral Limited v Marr the Court of Appeal identified “three formidable hurdles” faced by a party who wishes to make a late amendment to a pleading. He or she must show that the late amendment is in the interests of justice, will not substantially prejudice other parties and will not cause significant delay.5 The Court also distinguished between allowing amendments which merely clarify the

5      Elders Pastoral Limited v Marr (1987) 2 PRNZ 383 (CA) at 385.

issues in dispute, which may be akin to ensuring the true controversy goes to trial, and those which permit a distinct defence to be raised for the first time.6

[33]   In the present case, the starting point is that no affidavit has been filed explaining the delay in seeking to make the amendments. Although Mr La Hatte advised that it was because he had only relatively recently been instructed, I note that he appeared for Mrs Serepisos on her discovery application in September 2017. That was before the close of pleadings date.

[34]   Secondly, there can be no doubt that each of the three pleadings is (in varying degrees) akin to a new cause of action and would require further evidence and, in all likelihood, further discovery (discussed further below). The trial would therefore inevitably need to be adjourned. There is the usual and obvious prejudice involved from GFL’s perspective in terms of time and wasted costs. As well, however, there was evidence filed in support of GFL’s opposition to the application, in which it was deposed that:

We are concerned that not only are the proposed amendments unmeritorious they are really only designed to achieve delay. While it is the case that interest will continue to accrue on what Mrs Serepisos owes General Finance Limited, we recently had occasion to register charging orders over Mrs Serepisos’ remaining three real properties to secure costs awarded General Finance Limited by this Court. Upon payment of those costs, and being asked to provide a discharge of those charging orders, we obtained information about Mrs Serepisos’ mortgage commitments that suggest there is little to no equity in her properties that means there is no necessary correlation between accrual of the right to interest, upon further delay, and its recoverability. On the figures we were supplied, Mrs Serepisos' mortgage commitments were $2.245m against most recent government valuations of the three properties of a total of

$1. 78m.

[35] In terms of the merits of the individual proposed amendments, the new pleadings involving ss 44B and 45 of the Credit Contracts and Consumer Finance Act 2003 (the CCCFA) are the more minor. But both are predicated on the loan agreement being a consumer credit contract to which Pt 2 of the CCCFA applies.7 Such claims run contrary to the express declaration signed by Mrs Serepisos (set out at [6] above)

6      At 385.

7      In order for a credit contract to be a consumer credit contract, s 11 requires (inter alia) that the credit obtained by it “is to be used, or is intended to be used, wholly or predominantly for personal, domestic, or household purposes”.

that the loan had primarily a business or investment purpose. Putting to one side the obvious need for a good deal more evidence that is created by such an about-face, a pleading which requires Mrs Serepisos to establish that her own signed declaration was a lie seems to me potentially to open up a whole new and unwanted world of grief. Regardless of the fact that permitting the amendment would necessitate an adjournment of the fixture, the interests of justice do not, in my view, require that she be permitted to go down that route.

[36]   The contention that the 21.45 per cent default interest rate is an unenforceable penalty is undoubtedly more substantive and serious. Although such an allegation ultimately involves the construction of the loan agreement, that cannot take place in an evidentiary void. While stressing the necessary limits of such matrix evidence, the Court of Appeal in Wilaci Pty Limited v Torch Light Fund No 1 LP (in receivership) acknowledged that evidence which sheds light on the nature of the parties’ legitimate commercial interests and relevant transactional risks including the risk of loss of capital, collateral and reputation will be relevant.8 That evidentiary exercise focuses on the lender; it also takes into account the interests of the borrower.

[37]   Such contextual matters were most unlikely to be the focus of evidence going to the mortgagee sale process.9 I was therefore unable to accept Mr La Hatte’s contention that this new pleading could be addressed without substantial amendment and addition to the existing briefs. Indeed, and as noted earlier, it seemed to me that further discovery might well be required.

[38]   Lastly, and on any wider analysis of where the interests of justice lie, the circumstances giving rise to the debt do not favour Mrs Serepisos. The reality is that she borrowed nearly half a million dollars and made not one repayment under the loan. There is no suggestion that she attempted to meet her commitments at an early stage but then fell into arrears, only to become overwhelmed by the rapid accrual of default interest.

8      Wilaci Pty Limited v Torch  Light Fund No  1  LP (in receivership)  [2017] NZCA 152, [2017] 3 NZLR 293 at [8].

9      That assumption was borne out by the evidence that I later heard.

[39]   For all the above reasons, I did not permit the late amendments. Accordingly, the only real issue for determination at the trial was whether a breach of s 176 of the PLA could be established by Mrs Serepisos and, if so, what consequences that might have for the debt she owes. A very ancillary issue about the sale of her chattels is dealt with briefly at the end of this judgment.

The witness issues

[40]   After  I  had  ruled  against  allowing  the  amendments  to  the  pleadings,  Mr La Hatte advised that he had another problem. Mr Chin, who was to be one of the witnesses  for  Mrs  Serepisos,  could  not  be  found.  Another  of  his  witnesses,  Mr Khushal, would not be available until the following day. The need for an adjournment was foreshadowed.

[41]   After discussion with Mr McAnally, however, agreement was reached whereby the affidavits sworn by Mr Chin and Mr Khushal in opposition to the summary judgment application could be read as  their  evidence  in  the  substantive  matter. Mr McAnally confirmed that, on that basis, he would not require them for cross-examination.10 The matter then proceeded in that way.

[42]   Accordingly,  the  only  “live”  witnesses  called  by  Mr  La  Hatte  were    Mr Schlatter and Mrs Serepisos’ son, Eleftherios (Terry) Serepisos. Mr Serepisos’ evidence commenced with the unusual statement that he had a power of attorney for his mother and was authorised to give evidence on her behalf. No objection was taken to this, no doubt on the grounds that Mrs Serepisos herself is elderly and reportedly has poor English. It seems tolerably clear that Terry Serepisos was, in any event, her guiding hand in relation to the transaction at issue.

[43]I turn now to the counterclaims themselves.

10     The prerequisites of High Court Rules 2016, r 9.56 were therefore met.

Has Mrs Serepisos established a breach of s 176?

[44]   As will be evident from the account of the summary judgment application, above, the relevant allegation is that GFL breached its duty of care under s 176 by failing to have regard to the interest of a putative purchaser, Mr Chin, who is said to have been prepared to pay up to $800,000 for the apartment. As Mr McAnally said, the sole issue is whether GFL acted reasonably by not pursuing the “Chin interest”.

[45]   In his decision on the summary judgment application, Associate Judge Smith noted that there remained some cloudiness around the allegation that Ms Muollo had advised Mr Serepisos that she no longer had a key and that Mr Chin was unable to obtain access to the property. He rightly noted his reservations about expressing any view on that without hearing from Ms Muollo.

[46]   Ms Muollo was not called as a witness at trial before me, either. But the reason for that is that the critical issue has narrowed since then. At the time of the summary judgment hearing it was (for reasons which escape me) not known what date the agreement for sale and purchase of the property had been executed with the ultimate purchaser. It has since been made clear (and is not disputed) that that agreement was signed on 3 May 2016.

[47]   Accordingly, the s 176 counterclaim now turns on a question of timing. Put simply, if Mr Chin’s interest in the property did not materialise until after that 3 May date, there was nothing GFL could have done about it and therefore no breach of s 176. It is common ground that, absent any obvious prospect of obtaining a higher price, it was not unreasonable to accept the offer of $580,000.

[48]   In her pleadings, Mrs Serepisos alleges that the Chin interest was made known to GFL, through its agent, prior to the property being sold. But the evidence called on her behalf did not support that.

[49]   Mr Serepisos spoke of discussions with the agent when he returned from overseas in late 2015 or early 2016 and, through Mr Schlatter of SAL finance, with GFL directly. But he was clear that he had not met Mr Chin before 5 May 2016. It

was only at the meeting with Mr Chin, on that day,  did he say that he  telephoned  Mr Schlatter and, subsequently, Ms Muollo, to advise them of the Chin interest.

[50]   Mr Khushal  simply  deposed  that  he  had  been  told  by  Mr  Serepisos  on 5 May 2016 that the apartment was for sale and could be purchased at a good price. He said he then contacted Mr Chin and attended the meeting between Mr Chin and Mr Serepisos in Miramar on that day.

[51]   Mr Chin himself deposed that “on or about 5 May 2016” he was introduced to Mr Serepisos by a mutual friend, that he remembered meeting Mr Serepisos at his mother’s home in Miramar and that he had not met him before that day.

[52]Mr Schlatter’s evidence was that:

(a)towards the end of April 2016, he had been asked by Mr Serepisos to “mediate on behalf of his mother with General Finance”;

(b)Mr Cairns advised that he would not speak to Mr Serepisos and that anything to do with the sale had to go through Ms Muollo, and said that the property had not yet been sold; and

(c)that it was during this conversation that he also advised GFL that     Mr Chin was a potential purchaser who might be willing to pay

$800,000.

[53]   I agree with Mr McAnally that, in light of the other evidence summarised above, it seems that Mr Schlatter has inadvertently conflated the two conversations referred to in Mr Serepisos’ evidence. On Mr Serepisos’ account the earlier conversation did not mention Mr Chin, which is consistent with the evidence of Messrs Chin and Khushal.

[54]   In my view, the preponderance of the evidence strongly supports the conclusion that GFL did not have, and could not have had, knowledge of Mr Chin’s interest prior to the unconditional sale of the property on 3 May 2016. As noted earlier, it has not been seriously suggested that GFL could, in the circumstances, reasonably

have been expected to refuse an unconditional offer, for a price consistent with all other known interest in the property, on the chance that a better offer might happen come along.

[55]   So putting to one side the fact that Mr Chin never made a genuine, firm, unconditional offer and the fact that the $800,000 figure was mentioned without sighting  the  property,  he  had  not  even  foreshadowed  any  such  offer  prior  to   3 May 2016. The alleged breach of s 176 has not been established.

The sale of Mrs Serepisos’ chattels

[56]   In her further and better particulars of statement of claim, Mrs Serepisos alleged the existence of a Harcourts valuation (which has not been produced) that identifies chattels worth $15,000 that formed part of the sale. The only actual evidence adduced about that was when Mr Serepisos said:

General Finance should have deducted the sale of chattels that had been sold with the apartment valued at about $20, 000. My mother should have received $30, 000 approximately.

[57]   Putting to one side the absence of any positive evidence as to the existence of these chattels or their value, the claim that they should somehow have been accounted for is paradoxical. That is because any accounting to Mrs Serepisos for the value of the chattels would necessarily have reduced the net proceeds of the sale to GFL and increased her indebtedness accordingly. Moreover, any such increase in indebtedness would be incurring interest at the default rate of 21.45%.

[58]   Accordingly, not only has Mrs Serepisos suffered no loss from the alleged sale of her chattels, but she has benefited from it through a reduction of her indebtedness. There is nothing in this aspect of the defence.

The plaintiff's case: Result

[59]In his evidence for GFL, Mr Cairns:

(a)produced a further copy of the loan agreement in issue;

(b)confirmed that, as of 5 March 2018, Mrs Serepisos is indebted to GFL in the amount of $332,284.88 (after allowing for the earlier summary judgment for $50,000, which has been satisfied); and

(c)confirmed that the property at 30/30 Tory Street was sold, unconditionally, on 3 May 2016.

[60]   Given my dismissal of Mrs Serepisos’ remaining defences and counterclaims I therefore need only now to record that GFL has proved its claim and is entitled to judgment in the sum of $332,284.88, together with costs on a 2B basis.

Rebecca Ellis J