Heartland Bank Limited v Titchmarsh

[2017] NZHC 1046

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

CIV 2016-470-000183

[2017] NZHC 1046

BETWEEN

HEARTLAND BANK LIMITED

Plaintiff

AND

A K TITCHMARSH

Defendant

Hearing:

17 May 2017

Appearances:

R Schultz for the Plaintiff

J Braithwaite for the Defendant

Judgment:

19 May 2017

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

19.05.17 at 2:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HEARTLAND BANK LIMITED v A K TITCHMARSH [2017] NZHC 1046 [19 May 2017]

[1]                 This matter was called before me on 17 May 2017 upon the plaintiff’s summary judgment application.

[2]                 Within two days of the call the Court received the defendant’s third party and adjournment applications. Ms Braithwaite’s submissions explained the late filing of these documents. In recent times the defendant had sought legal advice from a person he believed was a lawyer. He was misled. Only in the last few days has he consulted Ms Braithwaite’s firm.

[3]                 Although Mr Titchmarsh has not received the leave of the Court to file the third party claim it is apparent that nothing of significance is raised by it that would offer a defence to the plaintiff’s claim against him which relies on his indemnity to meet payment to the plaintiff’s losses. Nothing of course shall prevent Mr Titchmarsh from taking his own action against the third party concerned.

[4]                 His issues are not with the plaintiff but with perceived breaches of duty owed by the receiver appointed to take over the affairs of his company, Kaituna.

[5]                 Notwithstanding that the defendant has not had sufficient time to consult with and take advice from the solicitors now appearing for him, the Court sees no option but to grant summary judgment in favour of the plaintiff.

[6]                 There is an order for summary judgment. The Court adjourns the matter for call again in this Court on 26 June 2017 at 12:15pm to fix the amount of judgment including interest, costs and disbursements.

[7]                 The Court requests plaintiff’s counsel to provide those details to Ms Braithwaite’s firm as soon as possible. At least the plaintiff will have a short term of opportunity to consider whatever options he may have for payment.

[8]                 Costs shall be fixed on a 2B basis, if they are not otherwise obliged to be paid on an indemnity basis pursuant to the terms of the defendant’s contractual obligations.

Associate Judge Christiansen