Opiweb Limited v Shirley - [2024] NZHC 558

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001408

[2024] NZHC 558

UNDER Part 19 of the High Court Rules 2016 and section 290 of the Companies Act 1993

BETWEEN

OPIWEB LIMITED

Applicant

AND

KATHRYN SHIRLEY

Respondent

Hearing: 5 March 2024

Appearances:

T D Bloy / L Kim for the Applicant

D Connor / S Sakairi for the Respondent

Judgment:

15 March 2024

Reissued:

22 March 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 15 March 2024 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Castle Brown, Auckland
Evolution Lawyers, Auckland D Connor, Auckland

OPIWEB LTD v SHIRLEY [2024] NZHC 558 [15 March 2024]

Introduction

[1] Opiweb Ltd (Opiweb) asks the Court to set aside a statutory demand served on it by Kathryn Shirley. The statutory demand seeks repayment of an amount ($46,973.10) said to be due and owing by Opiweb under various loans made by Ms Shirley to the company. The statutory demand included debt recovery costs of
$4,600, but Ms Shirley now accepts that these costs should not have been included.

[2] Opiweb relies on there being a substantial dispute about whether or not the debt is owing or due. Opiweb says that the loan agreements it had with Ms Shirley did not require the payment of interest (or costs) and that the principal has been repaid.

[3]The terms of the loans were not recorded in writing.

[4] This judgment decides whether there is a genuine, substantial dispute about whether or not the debt is owing or is due, meaning that the statutory demand should be set aside.

Facts

[5] Marcus Kahl (also known as Mohammed Ayub) incorporated Opiweb in 2007. He and Ms Shirley were in a relationship. She and Mr Kahl were recorded as the shareholders of the company. Ms Shirley agreed to be the director.

[6] At Mr Kahl’s behest, Ms Shirley took out three personal loans with Westpac between 2008 and 2011 and advanced the funds to Opiweb. The first loan, drawn down in August 2008 and transferred to Opiweb from Ms Shirley’s personal bank account ending in suffix -92, was for $20,000. The second loan, drawn down in January 2009 from Ms Shirley’s personal bank account ending with the suffix -93, was for $25,000 — however, only $24,000 was transferred to Opiweb. The third loan, drawn down in August 2011 was for $15,000 and was for Opiweb to buy a car. Opiweb does not dispute that Ms Shirley advanced a total of $59,000 to it.

[7] Under the terms of the loans between Ms Shirley and Westpac, the loans were repayable over ten years.

[8] Opiweb made repayments towards the first and second loans between October 2008 and June 2021 at a rate of $236 and then $253 per month until 2009, when repayments were reduced to approximately $84 per fortnight. Opiweb made repayments towards the third loan…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 558
Decision Date: 15 March 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Opiweb Limited sought to set aside a statutory demand served by Kathryn Shirley, which sought repayment of $46,973.10 plus recovery costs. The demand arose from loans that Shirley had advanced to Opiweb. The primary dispute was whether the debt was owing or due. Opiweb argued there was a substantial dispute over the interest payable and whether the principal had been repaid, while Shirley maintained there was no dispute over the debt. The Court examined the terms of the loans, the repayments made, and the evidence presented by both parties. The Court concluded that the undisputed facts showed that Shirley had loaned Opiweb a total of $59,000, which Opiweb had repaid $43,987 of. The remaining balance of $15,053 was due, minus the car that Shirley had been allowed to use, leaving a debt of $10,783. The Court found that Opiweb's claims of dispute were not substantiated by evidence and dismissed the application to set aside the statutory demand.

The Court ordered that the statutory demand was to stand for the reduced amount of $10,783, and Opiweb must comply within 15 working days, or Shirley could apply to put the company into liquidation. The Court also ordered that Shirley would be paid her costs on a 2B basis, with reasonable disbursements to be fixed by the Registrar.

Orders