Olliver v Mulholland

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-004285 [2014] NZHC 317

BETWEEN ANDREW JOHN OLLIVER & TINA ANN MARIA OLLIVER
Appellants

ANDWILLIAM FREDERICK MULHOLLAND Respondent

Hearing: On the papers.

Counsel: P J Kennelly for the Appellants
S H Barter for the Respondent

Judgment: 27 February 2014

JUDGMENT (No. 2) OF GILBERT J

This judgment is delivered by me on 27 February 2014 at 5pm pursuant to r 11.5 of the High Court Rules.

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

OLLIVER & TINA OLLIVER v MULHOLLAND [2014] NZHC 317 [27 February 2014]

[1] In a judgment delivered on 12 December 2013 I dismissed the Ollivers’ appeal from a decision of Judge B A Gibson in the District Court at North Shore entering judgment against Mr Olliver in favour of Mr Mulholland for the amount due under a loan agreement and dismissing the Ollivers’ claim that Mr Mulholland had exercised two share option agreements.1 I allowed Mr Mulholland’s cross-appeal relating to the interest payable under the loan agreement. I directed that memoranda should be filed in accordance with a timetable if the parties were unable to agree on the interest calculation or any issue as to costs.

[2] Mr Barter filed a memorandum on behalf of Mr Mulholland setting out his calculation of the interest payable. He seeks an order pursuant to s 45(5) of the Legal Services Act 2011 specifying the costs that would have been ordered had the Ollivers not been legally aided. He also seeks an order releasing the security for costs paid by Mr Mulholland in relation to his cross-appeal.

[3] In terms of the timetable directed in my judgment, any memorandum in response from the Ollivers should have been filed and served on or before
5 February 2014. Nothing has been filed on their behalf and accordingly I now make orders on the basis of the memorandum filed by Mr Barter.

[4] I make an order directing payment to Mr Mulholland of the amount paid by him as security for costs on his cross-appeal, namely the sum of $995.

[5] I make an order in terms of s 45(5) of the Legal Services Act that I would have ordered costs against the Ollivers on the appeal calculated on a 2B basis had they not been legally aided. These costs are as calculated by Mr Barter in schedule 1 of his memorandum save that item 56 relating to the preparation of written submissions should be allowed once, not twice as he has claimed. This reduces
Mr Barter’s calculation by $5,970 to $14,129.

1 Olliver vMulholland [2013] NZHC 3334.

[6] I enter judgment for Mr Mulholland against Mr Olliver for interest as calculated by Mr Barter in schedule 2 of his memorandum, namely the sum of
$52,332.28.

M A Gilbert J

CaseChat Overview and Summary

The case of Olliver v Mulholland involves a dispute between Andrew John Olliver and Tina Ann Maria Olliver (the Ollivers) and William Frederick Mulholland (Mulholland). The primary issue in the case is the enforcement of a loan agreement and the resolution of an interest dispute. The case was heard in the High Court of New Zealand, Auckland Registry, and the judgment was delivered by Justice M A Gilbert on 27 February 2014. The case is an appeal against a previous judgment of Judge B A Gibson in the District Court at North Shore.

The primary legal issues before the court were the calculation of interest payable under the loan agreement and the costs associated with the appeal. Mulholland had filed a memorandum outlining his calculation of the interest payable, and he sought an order specifying the costs that would have been ordered if the Ollivers had not been legally aided. Mulholland also sought an order to release the security for costs paid by him in relation to his cross-appeal. The court was required to consider the calculations provided by Mulholland and determine the appropriate costs and interest payable.

Justice M A Gilbert, in delivering the judgment, noted that the Ollivers had not filed a memorandum in response to Mulholland's calculations and, as such, the court proceeded on the basis of Mulholland's memorandum. The court made an order directing payment to Mulholland of the amount paid by him as security for costs on his cross-appeal, which was $995. The court also made an order under section 45(5) of the Legal Services Act, determining the costs that would have been ordered against the Ollivers on the appeal, calculated on a 2B basis, had they not been legally aided. The court reduced the costs calculated by Mulholland by $5,970 to $14,129.1. The court further made an order for interest payable by the Ollivers to Mulholland, calculated as $52,332.28.

In summary, the court ruled in favor of Mulholland, ordering the Ollivers to pay the amount of $14,129.1 in costs and $52,332.28 in interest. The court also ordered the release of the security for costs paid by Mulholland in relation to his cross-appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established