PGG Wrightson Finance Limited v Wairarapa Dairy Beef Limited HC Wellington Civ-2007-485-1168

[2007] NZHC 2051

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-1168

BETWEEN  PGG WRIGHTSON FINANCE LIMITED Plaintiff

AND  WAIRARAPA DAIRY BEEF LIMITED First Defendant

AND  DAVID JOSEPH MCANULTY Second Defendant

AND  ALISON JUDITH EDWARDS Third Defendant

Hearing:         6 August 2007

Appearances: E M S Cox for Plaintiff

T Lamb for Third Defendant

Judgment:      27 August 2007 at 11.00 am

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 11.00 am on the 27th day of August 2007.

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

[1]      This judgment relates to an application by the plaintiff for summary judgment against the third defendant in this matter.

[2]      When this matter was called on the 6th August 2007, Mr Lamb appeared on behalf of the third defendant.

[3]      Mr Lamb indicated then that he had only recently received instructions to appear on behalf of the third defendant Ms Edwards.  He said at that point that the

third defendant intended to apply for leave to file a statement of defence together

PGG WRIGHTSON FINANCE LIMITED V WAIRARAPA DAIRY BEEF LIMITED AND ORS HC WN CIV-

2007-485-1168  27 August 2007

with a notice of opposition to the summary judgment application out of time.   Mr Lamb  said  at  that  stage that  the third  defendant  had  issues  with  respect  to  the guarantee provided by her and the enforceability of the guarantee agreement.  There was also, as I understood it a small issue as to the quantum of the claim made by the plaintiff although this appeared not to be a major matter.

[4]      That said, on 6 August 2007 the following directions were made:

a)       The third defendant  by 13  August  2007  was to  file and  serve  an application for leave to file her statement of defence and notice of opposition to the summary judgment application out of time together with any supporting material.

b)       Any opposition to that application from the plaintiff was to be filed and served by the 27 August 2007.

c)        That matter was then to be listed for call on 3 September 2007.

[5]      At the hearing on 6 August 2007, I then went on to consider the unopposed summary judgment application brought by the plaintiff against the first and second defendants. Summary judgment was granted.

[6]      Turning  back  to  the  summary  judgment  application  against  the  third defendant, counsel for the plaintiff has now filed a memorandum dated 14 August

2007, which annexes an email from the third defendants’ solicitor Mr Parker of

Gawith Burridge, dated 13 August 2007.  This email states:

We are instructed by Ms Edwards (the third defendant) not to take any further action in relation to her application for leave to file her statement of defence.

[7]      That said and noting that the time limits for filing any statement of defence and notice of opposition outlined in paragraph [4] above have now expired, it seems

that the plaintiffs’ summary judgment  application  against  the  third  defendant  is effectively now unopposed.

[8]      In  his  memorandum  dated  14  August  2007,  counsel  for  the  plaintiff accordingly seeks summary judgment against the third defendant along similar lines to the summary judgment obtained on 6 August 2007 against the first   and second defendants.

[9]      By way of background the first defendant Wairarapa Dairy Beef Limted, as I understand the position was the farming operation undertaken by the second and third defendants.  The first defendant traded rearing calves amongst other activities.

[10]     The  first  defendant  had  a  credit  facility  with  the  plaintiff called  “a  calf facility”

This facility allowed the first defendant to purchase livestock and have the vendor paid from loans made through the facility account.

[11]     The calf package loan facility was guaranteed by the third defendant.

[12]     Difficulties arose with respect to these loan arrangements.   According to affidavits filed in support of the plaintiffs’ summary judgment application, the first defendant has now ceased its farming operation and a substantial amount is owing under the calf facility loan arrangement.   This debt is guaranteed by the third defendant.

[13]      The debt outstanding at present appears to be $479, 271. 50.   Interest is sought  by the  plaintiff on  this  sum  at  7.5%  per  annum  for  94  days  at  $98.46 amounting to $9,256.00.

[14]     As has been already noted, there is now effectively no opposition provided by the third defendant to this summary judgement application.  In addition, no defence has been filed by the third defendant to the plaintiffs’ claim.

[15]     I am satisfied therefore having considered the plaintiffs statement of claim together with the affidavits of Mr Flectcher and Mr Anderson filed in support and having considered the memoranda filed by Mr Cox counsel for the plaintiff dated 6

August 2007 and 14 August 2007, that an order for summary judgment against the third defendant is appropriate here.

[16]     That said summary judgment is now granted to the plaintiff against the third defendant Alison Judith Edwards with respect to this proceeding in the following sums:

a)        The outstanding debt being the sum of $479,271.50.

b)        Interest on this debt at 7.5% per annum for 94 days at $98.46 per day being $9,256.00.

[17]     In   addition   costs   calculated   on   a   category  2B   basis,   together   with disbursements as approved by the Registrar are granted in favour of the plaintiff against the third defendants.

“Associate Judge D.I.Gendall”

Solicitors:

Gibson Sheat, Private Bag 31-905, Lower Hutt for Plaintiff

Gawith Burridge, Masterton, Third Defendant