Nielsen v Subdivision Group no.4 Limited

[2023] NZHC 365

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-570

[2023] NZHC 365

BETWEEN

KLAUS JORGEN DAMSGAARD NIELSEN

First Plaintiff

SOREN DAMSGAARD NIELSEN
Second Plaintiff

AND

SUBDIVISION GROUP No. 4 LIMITED

First Defendant

ROWAN ROBINSON

Second Defendant

Hearing:

23 February 2023

Appearances:

R Norris for Plaintiffs

No appearance for Defendants

Judgment:

1 March 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

NIELSEN v SUBDIVISION GROUP No. 4 LIMITED [2023] NZHC 365 [1 March 2023]

[1]                 The  plaintiffs  seek   summary   judgment   against   Subdivision   Group  No. 4 Limited and Mr Rowan Robinson in relation to a loan the plaintiffs made concerning a residential development. The loan was made to the first defendant company and guaranteed by Mr Robinson.

[2]                 The statement of claim dated 2 December 2022 set out the amounts claimed and shows an interest calculation made to the date of the statement of claim.

[3]                 There is an affidavit of service confirming the proceedings were served on Subdivision Group No. 4 Ltd on 6 December 2022. There does not appear to be an affidavit of service in respect of service on Mr Robinson.

[4]                 Two days before the call of the summary judgment application, an amended statement of claim was filed as it had been discovered the interest calculation in the original statement of claim contained an error. The amendment increased the amount for which judgment was sought by some tens of thousands of dollars.

[5]                 In respect of Subdivision Group No. 4 Ltd, the amended statement of claim was emailed to the director of the company who acknowledged receipt by email. Copies of that email exchange has been provided.

[6]                 While strictly email service is not good service, the reality is the amended claim was actually received by the director of Subdivision Group No. 4 Ltd., I am satisfied that Subdivision Group No. 4 Ltd is aware of the increased amount sought.

[7]                 The plaintiffs’ claim is pursuant to a comprehensive loan agreement. No defence is evident on the material filed and accordingly, in my view, the plaintiffs are entitled to judgment.

[8]                 On that basis, there is judgment against Subdivision Group No. 4 Limited in the sum of $390,000.00 together with interest of $21,763.89, costs of $12,193.00, together with disbursements of $1,510.00 for Court filing fees, and other disbursements of $306.36. The plaintiffs have the benefit of a solicitor-client costs clause.

[9]                 As far as Mr Rowan Robinson is concerned, when the matter was called     on 23 February 2023, I was concerned that there was no evidence of service on     Mr Robinson. Mr Norris, counsel for the plaintiffs, referred to a provision in the loan agreement that entitled notices under the loan agreement to be sent by email. In my view, that provision does not apply to the service of High Court proceedings.

[10]              The proceeding is adjourned to Thursday 9 March 2023 at 11am for Mr Norris to provide proof of service of the proceedings and of the amended statement of claim on Mr Robinson.

Associate Judge Lester

Solicitors:

Summit Law, Christchurch (for Plaintiffs)

Copy to:

The defendants

Copy to counsel:
R Norris, Barrister, Christchurch (for Plaintiffs)