Kiwibank Limited v Khimich

[2019] NZHC 994

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-114

[2019] NZHC 994

BETWEEN

KIWIBANK LIMITED

Plaintiff

AND

MIKHAIL KHIMICH

Defendant

Hearing:

7 May 2019

Appearances:

R Gordon for plaintiff

No appearance by or for defendant

Judgment:

8 May 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    In this proceeding Kiwibank Ltd seeks to recover outstanding principal and interest under three loan agreements between the bank and a company by the name of Waiwera Thermal Resort Ltd (in liquidation), which indebtedness was guaranteed by the defendant. The proceeding was commenced on 26 February 2019. Along with the originating documentation — notice of proceeding and statement of claim — the plaintiff filed an application for summary judgment supported by affidavit evidence.

[2]    Subsequently, by ex parte application dated 11 March 2019, supported by affidavit evidence, the plaintiff sought an order for substituted service, the defendant apparently having left the country.  An order for substituted service was made on   13 March 2019.

[3]    The proceeding was  listed  for  call  in  the  Wellington  commercial  list  on 7 May 2019.

KIWIBANK LIMITED v KHIMICH [2019] NZHC 994 [8 May 2019]

[4]On behalf of Kiwibank Mr Gordon sought summary judgment.

[5]    There is proof of service on the file in the form of an affidavit sworn by  Khoti Rose Walker-Clements dated 18 April 2019.

[6]    The defendant has not entered a defence or taken any other step in the proceeding. By default, then, Kiwibank is able to establish the substantive claim.

[7]    The Court has before it an affidavit sworn by Vaughan Robert Hewson dated 26 February 2019 which comprehensively supports the basis for, and the quantum of, Kiwibank’s liquidated claim.

[8]    As at 15 February 2019, the amount owed to Kiwibank by the company, and therefore by the defendant, under the three loans or “facilities”, together with contractual interest to that date, totals $1,292,982.40.

[9]    Kiwibank also seeks an order that contractual interest continue to accrue at the rates provided for in the three loan agreements from the date of judgment, together with scale costs and disbursements.

[10]   In my view, Kiwibank is entitled to judgment. I therefore enter judgment in its favour in the sum of $1,292,982.40. Interest will continue to accrue on the unpaid loans from the date of this judgment until the date of payment at the contractual rates provided for in the three loan agreements (cl 2 of the revolving credit facility; cl 4 of the overdraft facility; and cl 2 of the construction facility). Finally, Kiwibank is entitled to scale costs on a 2B basis together with disbursements which may be fixed by the Registrar.

Associate Judge Johnston

Solicitors:

MinterEllisonRuddWatts, Wellington for plaintiff