Lewis v Chiswell

[2013] NZHC 2611

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003270 [2013] NZHC 2611

BETWEEN  CHARMAINE CLARICE LEWIS Plaintiff

ANDJONATHAN EARLE CHISWELL First Defendant

JOANNE CORALIE CHISWELL Second Defendant

MARTHA LYN KOREWHA Third Defendant

MARK JAMES WHELAN Fourth Defendant

ERNIES PROPERTIES LIMITED Fifth Defendant

Hearing:                   8 October 2013

Appearances:           A D Evans for Plaintiff

No appearance for Defendants

Judgment:                8 October 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Webster Malcolm & Kilpatrick, Warkworth

Copy to:            Defendants

LEWIS v CHISWELL [2013] NZHC 2611 [8 October 2013]

[1]      In these proceedings the plaintiff has applied for summary judgment against all five defendants on the basis of separate guarantees entered into by each of the defendants.

[2]      The plaintiff has served the first, second, fourth and fifth defendants with the proceedings.  Proof of service is on file.

[3]      The first defendant has recently been adjudicated bankrupt.  The plaintiff will take no further steps against the first defendant.

[4]      The plaintiff’s current instructions are that the third defendant will not be

proceeded against.  The third defendant has not been served.

[5]      The plaintiff today seeks judgment against the second, fourth and fifth defendants.   Although all have been served with the proceedings none have taken any steps other than the second defendant, who has filed a document on her own behalf  recording  her  financial  position.    In  the  document  she  says  she  accepts liability falls on her but says she simply does not have funds to pay the debt.

[6]      The  background  to  the  borrowing  and  the  guarantees  provided  by  the defendants appears unfortunate.  However, on the basis of the information before it, the Court is satisfied that there is no arguable defence by the second, fourth and fifth defendants to the application for judgment sought against them.  Indeed, in the case of the second defendant some time ago she had executed a consent to the entry of judgment.  The fourth and fifth defendants provided guarantees as well.

[7]      As there is no apparent arguable defence to the plaintiff’s claim there will be judgment for the plaintiff against the second, fourth and fifth defendants jointly and severally in the following amounts:

[a]       Principal loan amount $500,000;

[b]       Interest  at  the  agreed  rate  from  29  April  2008  to  today’s  date

$428,556.45;

[c]       The legal costs, again on a reasonable solicitor/client basis as agreed,

$12,661.88.

[8]       The substantive proceedings against the third defendant is adjourned on the following basis.  If a discontinuance against the third defendant has not been filed by

6 December 2013 the file is to be referred to me for further directions.

Venning J