Matthews v Scott

[2012] NZHC 2800

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-1117 [2012] NZHC 2800

BETWEEN  ANTHONY KEVIN MATTHEWS Plaintiff

ANDSHANE RICHARD SCOTT First Defendant

ANDWISELY HOLDINGS LIMITED Second Defendant

ANDSHANE RICHARD SCOTT, LIANNE SCOTT AND JOHN ANDREW REGINALD COX AS TRUSTEES OF THE SCOTT FAMILY TRUST

Third Defendants

Hearing:         24 October 2012

Counsel:         D J Powell for the Plaintiff

JAR Cox for the Defendants

Judgment:      24 October 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr D J Powell / Mr C T Patterson, Barristers, Auckland

Mr G Skeates (instructing solicitor for the plaintiff), Skeates Law, Solicitors, Auckland

Mr JAR Cox, Blomkamp Cox, Solicitors, Auckland

MATTHEWS V SCOTT HC AK CIV-2010-404-1117 [24 October 2012]

[1]      The plaintiff has applied, by the application dated 14 May 2012, for the following orders:

(a)       That the Tomlin order made by this Court and dated 30 March 2011 be enforced.

(b)      As part of that, that the stay of proceedings be removed.

(c)       That judgment then be entered in terms of the settlement deed for the balance outstanding together with interest.

[2]      There is also an application for increased costs.

[3]      The affidavit evidence for the plaintiff establishes the plaintiff’s entitlement to the orders sought subject to any opposition that might have been advanced for the defendants.  No opposition has been filed on behalf of the defendants.  However, Mr Cox appeared for the defendants.   He advised that his instructions are to take no steps to oppose the application.  It is acknowledged that there have been defaults and that these trigger the plaintiff’s entitlement to enforce the settlement in respect of the outstanding balance.   Mr Cox explained why some of the defaults had occurred having regard to his instructions from Mr Scott but implicitly acknowledged that those cannot in themselves provide opposition.

[4]      Mr Cox advised, on the basis of his instructions, that a sum of $75,000 could be paid within 24 hours and that the total balance outstanding could be paid within one month.  There was, in effect, a plea that although judgment might be entered on the deed an order should be made staying enforcement.

[5]      As discussed with Mr Cox I do not consider that the Court is vested with any form of discretion to modify the terms of the judgment if the factual foundation for the judgment is established.  As I have indicated, and as Mr Cox has acknowledged, the factual foundation for the judgment is established.

[6]      In consequence three will be judgment for the plaintiff in a sum of $405,000 together with interest on that sum at 8.5% per annum calculated from 30 March 2011 down to the date of payment.

[7]      I am not persuaded that the plaintiff is entitled to increased costs.   That application is based in the usual way on r 14.6 of the High Court Rules.  The matters referred to in Mr Powell’s submissions on behalf of the plaintiff are not in my judgment matters which  come within r 14.6(3).   The matters referred  to are, in essence,  the  background  facts  relating  to  the  defendants’  defaults  which  have justified  the  plaintiff  in  commencing  the  proceeding.     There  was  a  further compromise between the parties after the proceeding had been issued.   But any question of increased costs was effectively subsumed into the further agreement reached at that point.  The plaintiff is nevertheless entitled to costs which are fixed

on a 2B basis, together with all reasonable disbursements.

Woodhouse J