General Finance Limited v Serepisos - [2017] NZHC 749

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-835 [2017] NZHC 749

BETWEEN
GENERAL FINANCE LIMITED

Plaintiff

AND

ALIKI SEREPISOS Defendant

Hearing: 16 March 2017

Appearances:

S O McAnally for the plaintiff
K Smith for the defendant

Judgment:

13 April 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

CONTENTS

Application for adjournment ........................................................................................................... [2] Background........................................................................................................................................ [9] Ms Serepisos’ opposition ................................................................................................................. [26] The evidence filed by Ms Serepisos in opposition ......................................................................... [31] Evidence in reply for General Finance .......................................................................................... [52] Principles applicable to summary judgment applications ........................................................... [62] The issues to be decided .................................................................................................................. [65]
Reasons for declining adjournment ............................................................................................... [68]

Analysis ........................................................................................................................................ [80]

Result ............................................................................................................................................... [111]

[1] The plaintiff (General Finance) applies for summary judgment against Ms Serepisos for recovery of advances, interest and costs totalling $294,667.59. Ms Serepisos opposes the application. She says that General Finance 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 an

GENERAL FINANCE LIMITED v SEREPISOS [2017] NZHC 749 [13 April 2017]

apartment in Tory Street, Wellington (the property), over which the advances were secured, and that it was guilty of inordinate delay in selling once it had decided to sell the property. She also submits that it would be unfair to enter summary judgment in the particular circumstances of the case, and that the court should exercise its discretion to refuse the application.

Application for adjournment

[2] On the day before the hearing Mr Smith, counsel for Ms Serepisos, filed a memorandum seeking an adjournment of the hearing to enable Ms Serepisos to adduce further evidence by way of a supplementary affidavit. The supplementary affidavit would address:

(a) a valuation of the property by the agents in the amount of $995,000;

(b)the time period at or around the relevant periods as to the time usually expected in the real estate industry for the effective sale of an apartment in central Wellington;

(c) the commission paid for the “collapsed” first sale/ to the agent involved in the second sale (an earlier sale of the property by General Finance was cancelled by it when the purchaser failed to settle); and

(d) the sale with the property of Ms Serepisos’ personal chattels valued at

$15,000.

[3] The adjournment application was opposed by Mr McAnally, counsel for

General Finance, and I heard argument on it when the case was called on 16 March

2016.

[4] When the case was called, Mr Smith raised an additional ground in support of his adjournment application. He advised that on 14 March 2017 Ms Serepisos’ son Eleftherios (“Terry”) Serepisos, who has been acting as Ms Serepisos’ attorney in the defence of the claim, told him that there was a “close personal friendship” between Ms Muollo, the agent who was involved in selling the property for General Finance,

and the eventual purchaser of the property. Mr Smith was unable to explain the nature of this relationship any further, and he could not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 749
Decision Date: 13 April 2017

CaseChat Overview and Summary

In General Finance Limited v Serepisos, the High Court of New Zealand assessed a summary judgment application brought by General Finance against Aliki Serepisos. General Finance sought recovery of advances, interest, and costs totaling $294,667.59. Serepisos opposed the application, alleging that General Finance failed to discharge its duty under s 176 of the Property Law Act 2007 to take reasonable care to obtain the best price reasonably obtainable when selling a property in Wellington, over which the advances were secured. The court was also asked to consider whether General Finance was in breach of a duty owed to Serepisos to take reasonable care not to erode any equity she might have in the property due to delay in selling the property, and whether General Finance was entitled to recover costs incurred as a result of the default by the previous purchaser, Ms Denard, under the first sale contract.

The court declined to grant an adjournment sought by Serepisos' counsel, finding that the evidence proposed to be adduced was not likely to assist. The court found that it was reasonably arguable that General Finance breached its s 176 obligations by failing to consider an expression of interest from a potential purchaser, Mr Chin, who was prepared to pay up to $800,000 for the property. However, the court found that the 21-month delay in selling the property was not excessive and did not breach any duty owed to Serepisos. The court also found that General Finance was entitled to recover costs incurred as a result of the default by Ms Denard under the first sale contract, as permitted by the terms of the agreement between the parties.

The court entered judgment for General Finance in the sum of $50,000, finding that Serepisos had no arguable defence to that extent. The balance of General Finance's claims was to proceed to trial in the usual way.

Orders