McCollum v Thompson

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-1958

[2018] NZHC 173

BETWEEN ALLAN ROY MCCOLLUM, NANCY MARGARET MCCOLLUM AND
TERENCE NEIL WALKER
Plaintiffs

AND

DAVID JOHN THOMPSON AND JOSEPHINE RUTH MACBEATH

Defendants

Hearing: On the papers

Appearances:

B Gustafson for Plaintiffs W T Nabney for Defendants

Judgment:

16 February 2018

[SUPPLEMENTARY] JUDGMENT OF LANG J

This judgment was delivered by me on 16 February 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MCCOLLUM v THOMPSON [2018] NZHC 173 [16 February 2018]

[1] This file has been referred back to me to make final orders following delivery of the judgment of the Court of Appeal.

[2] I record that counsel for the defendants has received no further instructions from the defendants regarding three outstanding issues. These are:

(a)Determination as to loss of profits (if any) caused by the conversion of the 47 R2 heifers between 13 February and 11 April 2013.

(b)Interest owed by the defendants under the loan agreement and secured by the GSA.

(c)Costs in the High Court.

Loss of profits

[3] Mr McCollum has sworn and filed an affidavit confirming that the 47 R2 heifers did not produce milk between the period from 13 February 2013 until 11 April 2013. The defendants have elected not to place any evidence before the Court to contradict that of Mr McCollum. For that reason I determine there was no loss of profits arising out of the conversion of the 47 R2 heifers.

Interest

[4] Interest runs on the outstanding sum of $105,752.76 at the rate of $43.46 per day. I therefore award the plaintiffs interest as sought at paras 10.1 and 10.2 of the memorandum of counsel for the plaintiffs dated 28 July 2017 with an upward adjustment on a daily basis to reflect the period from 6 July 2017.

Costs

[5] The defendants are legally aided. The plaintiffs accept that there are no exceptional circumstances to justify an order for costs being made against the defendants under s 45(2) of the Legal Services Act 2011. I therefore make no order as to costs.

[6]This proceeding should now be treated as at an end.

Lang J

Solicitors:
B Gustafson, Barrister, Auckland
M Morrison, Morrison Mallett, Auckland W T Nabney, Barrister, Tauranga

CaseChat Overview and Summary

In the case of McCollum v Thompson, the plaintiffs, Allan Roy McCollum, Nancy Margaret McCollum, and Terence Neil Walker, brought proceedings against the defendants, David John Thompson and Josephine Ruth MacBeath. The dispute arose from a series of transactions and agreements concerning the conversion of cattle, a loan agreement, and the security provided for that loan. The plaintiffs sought compensation for the conversion of their cattle, interest on a loan, and costs associated with the litigation. The court was required to determine three specific issues: the loss of profits caused by the conversion of the cattle, the interest owed by the defendants under the loan agreement, and the costs of the proceedings.

Regarding the loss of profits, the plaintiffs claimed that the conversion of 47 R2 heifers between 13 February and 11 April 2013 resulted in a loss of income. The plaintiffs provided an affidavit stating that the heifers did not produce milk during this period, and the defendants did not present any evidence to refute this claim. Consequently, the court found that there was no loss of profits arising from the conversion of the cattle. In relation to the interest, the court determined that the defendants owed interest on the outstanding sum of $105,752.76 at a rate of $43.46 per day. The court awarded the plaintiffs interest as sought by their counsel, with an upward adjustment to reflect the period from 6 July 2017. Lastly, concerning costs, the court noted that the defendants were legally aided, and the plaintiffs did not argue for exceptional circumstances to justify an order for costs against the defendants. Therefore, the court made no order as to costs.

The court concluded that the proceeding should now be treated as at an end, and the final orders were to be made accordingly. The judgment detailed the specific calculations for interest and confirmed that there would be no costs awarded to the plaintiffs. The court's decision resolved the outstanding issues in the litigation, providing clarity on the financial obligations of the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the papers
Appearances:	B Gustafson for Plaintiffs W T Nabney for Defendants
Judgment:	16 February 2018