Liberty Financial Limited v Archer HC Wellington CIV-2010-485-1764

[2010] NZHC 2353

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1764

UNDER

BETWEEN

the Property Law Act 2007

LIBERTY FINANCIAL LIMITED

Plaintiff

AND

CHRISTINE JANE ARCHER First Defendant

AND

JARON LESLIE ARCHER Second Defendant

AND

THOMAS GEORGE HUGHES Third Defendant

AND

JAGO DONALD COLLIER Fourth Defendant

Hearing:

8 November 2010

Judgment:

8 November 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I GENDALL

Solicitors:           Lowndes & Associates, Solicitors, PO Box 7311, Auckland 1141

LIBERTY FINANCIAL LIMITED V CJ ARCHER AND ORS HC WN CIV-2010-485-1764  8 November 2010

[1]      On 26 October 2010 when this matter was called summary judgment was granted against the fourth defendant in this matter.

[2]      The matter was then adjourned to today 8 November 2010 as against the first, second and third defendants.

[3]      Mr Sanders for the plaintiff appeared today and indicated that, as against the third defendant, there have been service difficulties and the plaintiff now wishes to withdraw the proceeding as against that defendant.

[4]      Leave is now granted to the plaintiff to withdraw the proceeding against the third defendant.

[5]      This leaves the plaintiff’s summary judgment application remaining against the first and second defendants.

[6]      Today, Mr Tannahill appeared as counsel for the first and second defendants and made submissions to the Court based upon the financial position of those defendants and what he alleged was an unreasonable position taken here by the plaintiff finance company.

[7]      Notwithstanding this, Mr Tannahill indicated that the summary judgment application as against the first and second defendants is effectively now unopposed.

[8]      That said, summary judgment is now granted to the plaintiff against the first and second defendants as follows:

(a)       With regard to the first defendant, Christine Jane Archer, summary judgment is granted to the plaintiff against her in the following sums:

(i)        Judgment  for  the  First  Loan  Shortfall  as  outlined  in  the

Memorandum from Counsel for the Plaintiff filed and dated

21  October  2010  (“the  memorandum”)  for  the  sum  of

$574,912.19.

(ii)       Judgment for the Second Loan Shortfall of $356,436.11.

(iii)Interest on the First Loan shortfall at the rate of 13.95% p.a. being the default interest rate from 5 December 2009 up to today’s date, 8 November 2010.

(As to this, the interest on this amount, as I understand it, from

5 December 2009 up to 26 October 2010 is noted in the memorandum at $71,412.25.   There will be an additional approximately 2 weeks interest on this amount of course).

(iv)Interest on the Second Loan Shortfall at the rate of 13.25% p.a. being the default interest rate from 12 February 2009 up to today’s date 8 November 2010.

As to this, interest on this amount from 12 February 2009 up to the original date of 26 October 2010 is noted in the Memorandum at $33,126.40.   There will of course be an additional approximately two weeks interest added to this amount).

(v)Costs are awarded to the plaintiff against the first defendant on an indemnity basis amounting to $8,458.00 as set out at Schedule C of the Memorandum together with disbursements as set out at Schedule D totalling $1,500.00.

(b)With respect to the second defendant, Jaron Leslie Archer, summary judgment is now granted to the plaintiff against the second defendant in the following sums:

(i)Judgment for the Second Loan Shortfall as outlined in the memorandum of $356,436.11.

(ii)       Interest on the Second Loan Shortfall at the rate of 13.25%

p.a. being the default interest rate from 12 February 2009 up

to  today,  8  November  2009  (interest  for  the  period  12

February 2009 to 26 October 2010 specified in the Memorandum totalled $33,126.40 but there is to be an additional approximately two weeks interest added to this amount).

(iii)In  addition  costs  are  awarded  to  the  plaintiff  against  the second defendant on an indemnity basis as set out at Schedule C of the Memorandum totalling $8,458.00 together with disbursements as set out at Schedule D of that memorandum totalling $1,500.00.

‘Associate Judge D.I. Gendall’