Gilmore v Gilmore

[2022] NZHC 274

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-418

[2022] NZHC 274

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:

24 February 2022

Appearances:

S C Clay for Plaintiffs

Mr A W Gilmore for Defendants (by AVL, audio link only)

Judgment:

24 February 2022

Reissued:

1 March 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Consent Judgment)

GILMORE v GILMORE [2022] NZHC 274 [24 February 2022]

[1]                  The plaintiffs in this proceeding have applied for summary judgment against the defendants in the sum of $257,000 plus interest and costs. Judgment for a further sum is sought but the consent judgment that I record relates only to the sum of

$257,000 plus interest.

[2]                  The first call of the plaintiffs’ summary judgment application took place on the morning of 24 February 2022. Mr A W Gilmore appeared by AVL link, albeit only an audio link was operating. Mr A W Gilmore is also the sole director of Cow Power Investments Limited, the other named defendant.

[3]                  Prior  to Mr Clay,  counsel for the plaintiffs,  commencing his  submissions,   I explored with Mr Clay and Mr A W Gilmore whether an agreed outcome was possible given Mr A W Gilmore did not dispute that the defendants had an obligation to repay the $257,000 but asserted the time for payment had not fallen due.

[4]                  The defendants intended payment was to come from the sale of an apartment in Wellington which is presently on the market but given the proximity of the apartment to the current COVID protest at Parliament grounds, achieving a sale in the expected timeframe had not been possible.

[5]                  Following a brief adjournment, in which Mr Clay took instructions, the following was agreed:

(a)There is judgment against the defendants in the sum of $257,000 plus interest at the contractual rate. That judgment is to lie in Court and not to be sealed for 120 calendar days from 24 February 2022.

(b)Within 10 working days the defendants are to grant security satisfactory to the plaintiffs over the apartments 98 and 67, 43 Mulgrave Street, Wellington.

(c)In default of security being granted to the reasonable satisfaction to the plaintiffs as required in (b) above, the plaintiffs shall be entitled to register charging orders over the two apartments.

(d)Costs are reserved. If the plaintiffs wish to apply for costs, they should file submissions (not more than five pages) within 10 working days. Any reply from Mr A W Gilmore to be filed within a further 10 working days and I will then determine costs on the papers.

[6]                  I confirm the terms of the order were discussed with Mr A W Gilmore who consents to me issuing judgment as provided above.

[7]                  Leave is reserve for either party to apply for a telephone conference should the need arise.

[8]                  That leaves the balance of the plaintiffs’ claim. There is an issue as to when the balance of the plaintiffs’ claim is payable. Mr Clay is to file a memorandum within 10 working days indicating what he wishes to do with the balance of the plaintiffs’ proceeding.

Associate Judge Lester

Solicitors:
Lane Neave, Christchurch

Copy to:
Mr A W Gilmore

Addendum

This Judgment has been reissued to correct middle name of the first mentioned defendant, Mr Aaron Wayne Gilmore, in the intituling.