Nouvelle Vie Trustee Limited v Clayton

[2021] NZHC 687

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-000099

[2021] NZHC 687

BETWEEN

NOUVELLE VIE TRUSTEE LIMITED

Plaintiff

AND

MARK ARNOLD CLAYTON

First Defendant

BERKDALE HOLDINGS LIMITED
Second Defendant

MEDFORD HOLDINGS LIMITED

Third Defendant

Hearing:

29 March 2021

Appearances:

J Hosking for the Plaintiff

No appearance by or for the Defendants

Judgment:

30 March 2021

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 30 March 2021 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Sandford & Partners, Rotorua J Hosking, Rotorua

NOUVELLE VIE TRUSTEE LTD v CLAYTON [2021] NZHC 687 [30 March 2021]

[1]                  The plaintiff / applicant applies for summary judgment of monies owing under a Term Loan Agreement dated 18 December 2015 entered into between Melanie Anne Bailey (formerly Clayton) and the defendants, and assigned by Ms Bailey to the plaintiff / applicant. The Term Loan Agreement arose out of a Relationship Property Agreement entered into on 10 December 2015 between Ms Bailey and the first defendant, Mark Arnold Clayton.

[2]                  The plaintiff claims that the defendants have defaulted by failing to make payments in accordance with the Term Loan Agreement, and exercises its right to call up monies owing following the continuing default.

[3]                  The application is supported by an affidavit of Melanie Anne Bailey sworn on 10 February 2021. Ms Bailey annexes the Relationship Property Agreement dated  10 December 2015, the Deed of Assignment of her interests under the Relationship Property Agreement and Term Loan Agreement to Nouvelle Vie Trustee Limited dated 17 December 2015, and the Term Loan Agreement between Ms Bailey, Mr Clayton as borrower, and two trustee companies: Berkdale Holdings Limited and Medford Holdings Limited as covenantors.

[4]                  Ms Bailey also annexes a minute from Courtney J dated 29 February 2016 recording the terms of settlement between Ms Bailey and Mr Clayton, which included a consent order that in the event of default the parties agree that neither party will oppose the High Court having jurisdiction, and that the party seeking to enforce may proceed by way of civil proceedings, and where the issue is only debt recovery, by summary judgment.

[5]                  Ms Bailey attests to the fact that the defendants were required to make an additional payment of principal of $163,842.57 on 1 January 2020. Formal demand for payment of all the monies owing was made by letter dated 28 September 2020. As at the date of the affidavit, the balance owed by Mr Clayton was $1,295,213.85, plus interest of $309,881.39, with interest continuing to accrue at 15 per cent.

[6]                  Clause 12 of the Term Loan Agreement entitles the plaintiff to its costs on the defendants’ default.

[7]                  Mr Clayton was duly served with the proceedings on 15 February 2021, as confirmed  by  an  affidavit  of  service  of  Charles  Arthur  Harrison  sworn  on     23 March 2021.

[8]                  The defendants have not filed a statement of defence or notice of opposition to the application for summary judgment, and there was no appearance by the defendants at the first call of the summary judgment application on 29 March 2021.

[9]                  I am satisfied that the defendants do not have an arguable defence to the plaintiff’s claim, and that judgment should be entered against the defendants.

Orders

[10]I order that:

(a)judgment is entered against the defendants in the sum of $1,605,097.24; comprised of the principal  sum  of  $1,295,213.85  and  interest  to  10 February 2021 of $309,881.39;

(b)the defendants will pay the plaintiff’s costs (on a solicitor / client basis) and disbursements of $8,724.09.

Associate Judge Gardiner