Onyx Bar & Cafe (Cambridge) Limited v Jans

[2012] NZHC 1294

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-1127 [2012] NZHC 1294

BETWEEN  ONYX BAR & CAFE (CAMBRIDGE) LIMITED

Plaintiff

ANDTREVOR HERMAN JANS Defendant

(On the papers)

Counsel:         PJ Morgan QC for plaintiff

KJ Crossland for defendant

Judgment:      11 June 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE

Solicitors:           Welsh McCarthy, PO Box 434, Hawera 4640

Stace Hammond, PO Box 19 101, Hamilton

ONYX BAR & CAFE (CAMBRIDGE) LIMITED V JANS HC HAM CIV-2011-419-1127 [11 June 2012]

[1]      In my judgment dated 8 May 2012 I considered the plaintiff’s application for summary judgment against the defendant.

[2]      At [53] and [54] of that judgment I recorded:

But for one additional matter the above analysis would lead to the position where I granted summary judgment in favour of the plaintiff for $247,500, plus interest in accordance with the Judicature Act 1908, plus costs. The one matter, however, relates to the fact that the affidavits disclose that Mr Wilson has made payments of $20,000 and $50,000 in respect of the judgment obtained against him.   Mr Morgan acknowledged that there are terms of settlement in existence between the plaintiff and Mr Wilson under which these payments were made.

Before I enter judgment finally in this case, therefore, I require from the plaintiff a memorandum that:

(a)       Indicates  any  authority  that  might  support  the  proposition  that  I

should ignore these payments; or, if there is no such authority

(b)       What effect they have on the quantum claimed in this case and what effect any subsequent payments made under any deed of settlement may have.

Counsel  shall  cover  these  matters  by  memorandum  which  is  filed  and served.  If any issue is taken with the content of counsel for the plaintiff’s memorandum by counsel for the defendant, a response memorandum shall be filed seven days thereafter and I will convene a conference so that the matter can be appropriately investigated.

[3]      Mr Morgan has filed a memorandum.

[4]      The  Case  Officer  who  has  responsibility  for  this  file  has  contacted Mr Crossland.     I  am  advised  that  Mr Crossland  has  advised  that  he  has  no instructions to file a memorandum in opposition to that filed by Mr Morgan.

[5]      Mr Morgan advises that the plaintiff does not contend that the Court should ignore  payments  thus  far  made  by  Mr Wilson  in  the  District  Court.    In  his memorandum he analysed the second question I raised which is that set out in [54]b) of the judgment.

[6]      I set out paragraphs 3 to 13 of Mr Morgan’s memorandum as follows:

3.The Judgment in the District Court against Denaro Limited, Wilson and The Stables Sports Bar Limited was against those three Defendants jointly and severally in the sum of $200,000.00 together with interest on that sum at 8.4% per annum on the amount of Judgment from the date of filing the proceedings on 12 February

2009 to the date of payment, together with costs and disbursements in the sum of $40,468.46.

4.        A copy of the Judgment is attached to this memorandum marked

“A”.

5.        Interest calculated on the $200,000.00 Judgment from 12 February

2009 to 31 May 2011 is $39,031.00.

6.        Interest calculated on the costs but from 2 June 2010 (the day after

Judgment) to 31 May 2011 is $3,399.35.

7.        Those sums total $282,898.81 calculated as follows:

Judgment sum  $200,000.00

Interest as per paragraph 5  $39,031.00

Costs  $40,468.46

Interest on costs as per paragraph 6  $3,399.35

Total  $282,898.81

The sum of $82,898.81 is solely costs and interest.

8.The 31st  May 2011 has been selected as a date for the purposes of calculation as the first sum paid by any Defendant in the District Court was on 15 June 2011.

9.As referred to in the affidavits, Mr Wilson paid a sum of $70,000.00 between 15 June 2011 and the date on which Mr Levings swore his last  affidavit.    Since  that  time  Mr  Wilson  has  paid  a  further

$12,500.00 giving a total of $82,500.00.

10.The Plaintiff proposes to treat those sums received as being applied in  payment  of  the  costs  in  the  District  Court  and  the  interest awarded in the District Court.   For ease of calculation and for simplicity generally the Plaintiff makes no further claim to interest on any outstanding portion of the Judgment debt in the District Court from 1 June 2011.   For the same reason the Plaintiff will ignore the small difference between the sum received and the total costs and interest ($82,898.81 - $82,500.00 = $398.81).

11.      Consequently any further monies received after the date of this memorandum must be applied in reduction of the Judgment sum of

$200,000.00.

12.The Plaintiff now seeks Judgment against the Defendant Jans in this proceeding for $247,500.00 as to this point it has not received any monies from any Defendant in payment of that sum.

13.As  the  sums  already  paid  by  Mr  Wilson  have  been  applied  in reduction of the interest to 31 May 2011 and costs awarded in the District Court, there is no duplication of the Judgment sum.

[7]      The  above  analysis  satisfies  me  that  it  is  appropriate  that  I  now  enter judgment  for $247,500,  plus  interest  at  the rate of 5  per cent  per annum  from

15 August 2011.   The plaintiff is entitled to costs calculated on a 2B basis plus disbursements.  Mr Morgan has presented the Court with a draft judgment which I adopt.

[8]      Accordingly, I enter judgment for the claim, interest and costs as set out in

the draft which is attached to counsel’s submissions.

JA Faire

Associate Judge