IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001958 [2016] NZHC 28
BETWEEN ALLAN ROY MCCOLLUM, NANCY
MARGARET MCCOLLUM AND TERENCE NEIL WALKER Plaintiffs
AND
DAVID JOHN THOMPSON AND JOSEPHINE RUTH MACBETH Defendants
Hearing: 28-30 September and 6 November 2015 Appearances:
L Kemp for plaintiffs
W T Nabney for defendantsJudgment:
28 January 2016
JUDGMENT OF LANG J
This judgment was delivered by me on 28 January 2016 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
ALLAN ROY MCCOLLUM v THOMPSON [2016] NZHC 28 [28 January 2016]
INDEX
Background [3] The issues [10] What sum do the defendants owe the plaintiffs in respect of the advance
made in July 2011?
[11] Payment of $6200 to Mr Crossland [13] Travel costs [15] Service fee [17] Solicitors’ costs [18] Bankruptcy costs [19] Credit in respect of income earned by the plaintiffs from milk production
derived from the herd before they purchased it from the receivers?
[20] Result [24] Did the GSA provide the plaintiffs with security over livestock other
than those described in the list attached to the GSA?
[25] Did the defendants breach other obligations under the GSA and, if so,
what are the consequences of those breaches?
[50] Failure to use herd management tags [51] Failure to provide additional security [58] Other alleged breaches [64] Did the plaintiffs breach their duty to sell the livestock that they seized
under the GSA for the best price reasonably obtainable as at the time of the sale to the plaintiffs?
[66] What loss did the defendants suffer as a result of the sale at undervalue? [80] What is the status of the two year old heifers uplifted from the Onion
Road property?
[95] What is the status of the livestock uplifted from the Otanga Valley Road
property?
[99] What was the value of the two year old heifers uplifted from the Onion
Road property and the livestock uplifted from Otanga Valley Road?
[102] The two year old heifers uplifted from the Onion Road property [103] The livestock uplifted from Otanga Valley Road [108] Consequential losses [112] Summary [118] Interest [119] Leave reserved [121] Costs [122]
[1] In this proceeding the plaintiffs seek to recover monies that they loaned to the defendants, Mr Thompson and Ms Macbeth, in July 2011. In order to provide the plaintiffs with security for the advance, the defendants executed in their favour a General Security Agreement (GSA). This gave the plaintiffs security over livestock owned by the defendants.
[2] The defendants do not contest the fact that they owe money to the plaintiffs, although there is some dispute regarding the issue of quantum. The principal issue in dispute is a counterclaim that the defendants advance against the plaintiffs. They contend that the plaintiffs seized their livestock and sold it at undervalue. In addition, they say that some of the livestock that the plaintiffs seized were not included within the security provided by the GSA. They say that the amount to which…
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CaseChat Overview and Summary
The court found that the defendants owed the plaintiffs $285,056, together with interest. The court held that the GSA did not provide the plaintiffs with security over livestock other than those described in the list attached to the GSA, and that the plaintiffs were not entitled to uplift the livestock held at the Onion Road and Otanga Valley Road properties. The court also found that the receivers breached their duty under s 19 of the Receiverships Act 1993 to sell the herd to the plaintiffs for the best price obtainable at the time of the sale, resulting in the defendants suffering a loss of $54,250.
The court awarded the defendants damages for the conversion of the 47 two year old heifers uplifted from the Onion Road property and the livestock uplifted from Otanga Valley Road, as well as damages for consequential losses suffered as a result of the conversion. The court also reserved leave for the parties to file memoranda in the event that it had inadvertently omitted to deal with any of the issues raised by the pleadings.
The court ordered that the defendants are liable to pay the plaintiffs the sum of $26,606, together with interest on that sum. The parties were also ordered to endeavour to reach agreement regarding the issue of interest payable in respect of any of the sums awarded on the counterclaim. Costs were awarded to the defendants on a category B basis, together with disbursements as fixed by the Registrar.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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