| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA78/2016 [2017] NZCA 269 |
| BETWEEN | ALLAN ROY MCCOLLUM, NANCY MARGARET MCCOLLUM AND TERENCE NEIL WALKER |
| AND | DAVID JOHN THOMPSON AND JOSEPHINE RUTH MACBETH |
| Hearing: | 23 February 2017 (further mateial received on 16 March 2017) |
Court: | Asher, Simon France and Peters JJ |
Counsel: | B D Gustafson for Appellants |
Judgment: | 28 June 2017 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe High Court order is quashed.
CThe issues described at [89] are remitted back to the High Court for determination.
DAny issues relating to interest are to be determined in the High Court.
EThe High Court is to determine the final amount owing in accordance with this judgment and its determinations of the issues described in C and D.
FThere is no order as to costs in this Court.
G Costs in the High Court are to be determined in that Court in the light of this judgment.
__________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Table of Contents
| Para No | |
| Introduction The argument, and the High Court decision Second submission: the Judge erred in awarding consequential losses being loss of profits for two milking seasons | [1] [15] [39] [43] [57] [61] |
Introduction
Two of the appellants, Mr and Mrs McCollum, are elderly and in 2011 had money to invest. They had a long-term involvement in farming, although in recent years not dairy farming. The other appellant, Mr Walker, is their friend. The respondents, Mr Thompson and Ms Macbeth, were involved in sharemilking a dairy herd. Mr Thompson had been involved in dairy farming from his childhood. They had borrowed money from ANZ Bank Ltd to finance their sharemilking business, but had fallen into arrears. ANZ had appointed receivers to take control of their herd. The respondents were going to lose their herd unless they could refinance.
Ultimately the appellants agreed to lend $260,000 to the respondents. This was an amount sufficient to repay ANZ in full. A loan and security agreement was drawn up on the Auckland District Law Society (ADLS) form, which provided for an interest rate of 15 per cent per annum. A memorandum of general terms and conditions for a general security agreement on the ADLS form was prepared and signed by the parties on 4 July 2011 (the GSA). It contained a list of 342 animals that were to be security for the loan. These were to be located at the property on which the…
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- AGLC
- McCollum v Thompson [2017] NZCA 269
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- [2017] NZCA 269
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