Gilmore v Gilmore

[2022] NZHC 793

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-418

[2022] NZHC 793

IN THE MATTER

of a breach of a Loan Agreement

BETWEEN

GARRY KEITH GILMORE AND KAY DIANNE GILMORE

Plaintiffs

AND

AARON WAYNE GILMORE and COW POWER INVESTMENTS LIMITED, as

trustees of THE MIGHTY ROCKET TRUST

Defendants

Hearing:

(On the papers)

Counsel:

S C Clay for Plaintiffs

Mr A W Gilmore (in-person)

Judgment:

13 April 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Varying Consent Judgment dated 24 February 2022)

GILMORE v GILMORE [2022] NZHC 793 [13 April 2022]

[1]                  In the Consent Judgment of 24 February 2022 (reissued on 1 March 2022) (the February Consent Judgment), I recorded at [5](b) that Mr Gilmore was to arrange for security to be given over two apartment units in Wellington, namely unit 98 and unit 67, 43 Mulgrave Street, Wellington.1

[2]As it turns out, it was not possible for security to be given over unit 67.

[3]                  As I recorded in a Minute dated 6 April 2022, as security by consent had not been provided over unit 98 that triggered the plaintiffs’ rights under [5](c) of the February Consent Judgment. With security not being available over unit 67, Mr Clay, counsel for the plaintiffs, requested the matter be addressed by the Court.

[4]                  A telephone conference was held at 12.00pm on 13 April 2022.  I had issued a Minute dated 6 April 2022 in which I indicated that I expected Mr Gilmore to nominate a second property over which security could be taken in place of unit 67.

[5]                  During the telephone conference, Mr Gilmore said security was available over unit 54, 43 Mulgrave Street, Wellington and he consented to a Judgment being issued which substituted unit 54 for unit 67 on the same terms as the orders made at [5] of the 24 February 2022 Judgment.

[6]                  Accordingly, in terms of those orders, within 10 working days, the defendants are to grant security satisfactory to the plaintiffs over unit 54, 43 Mulgrave Street, Wellington. The default provision in para [5](c) of the February Consent Judgment applies in respect of that order. Again, Mr Gilmore was content for the new unit number to be substituted into those orders.

[7]                  There was then discussion about the balance of the plaintiffs’ claim. The issue between the parties is when Mr Gilmore is obliged to repay the loans in issue. For the avoidance of doubt, I am here referring to the amounts over and above the sum covered in the February Consent Judgment. Mr Gilmore confirmed that he agreed he would

1      Gilmore v Gilmore [2022] NZHC 274.

repay half the amount outstanding on 7 February 2023 and the remaining half on     7 February 2024, together with any interest adjustment required. As he sees such payments as reflecting his contractual obligation. He also agreed that if there was an issue in respect of the interest calculation, that would be referred to the Court.

[8]                  The plaintiffs want to wait and see if the payment due under the February Consent Judgment is made. If that payment is made, then given Mr Gilmore’s commitments in respect of the balance as set out above, the plaintiffs may elect to await payment on those dates.

[9]                  With payment under the February Consent Judgment due in June 2022, there will be a telephone conference with me at 11am on Wednesday 6 July 2022 to review the situation.

Associate Judge Lester

Solicitors:
Lane Neave, Christchurch

Copy to:
Mr A W Gilmore