Public Trust v Patel HC Wellington CIV-2010-485-2130

[2011] NZHC 398

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2130

BETWEEN  PUBLIC TRUST Plaintiff

ANDSHASHIKANT ANANDKUMAR PATEL Defendant

Hearing:         4 April 2011

(Heard at Wellington)

Counsel:         D.M. Miller - Counsel for Plaintiff

E. Ritchie - Counsel for Defendant

Judgment:      4 April 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Simpson Grierson, Solicitors, PO Box 2402, Wellington

Buddle Findlay, Solicitors, PO Box 2694, Wellington 6140

PUBLIC TRUST V SA PATEL HC WN CIV-2010-485-2130 4 April 2011

[1]      Before the Court are two applications:

(a)      An application by the plaintiff for summary judgment on its claim against the defendant; and

(b)An application for defendant’s summary judgment by the plaintiff, Public Trust, with respect to the defendant, Mr Patel’s counter-claim against the plaintiff.

[2]      Ms Miller appeared as counsel for the plaintiff.   Ms Ritchie appeared as counsel for the defendant.

[3]      Ms  Ritchie  confirmed  that  her  firm  Buddle  Findlay  had  only  last  week received instructions from the defendant to act in this matter.  In this regard I note that on 28 February 2011 the defendant personally filed a memorandum in this Court notifying of a change of representation and address for service for him with regard to this proceeding.   That notice indicated that the defendant now intended to act in person in place of his previous counsel, Mr Richard May of Chapman Tripp.

[4]      Also  on  28  February 2011  the  defendant  in  person  filed  a  statement  of

defence to the plaintiff’s claim, counter-claim and supporting affidavit.

[5]      Notwithstanding this, before me today Ms Ritchie for the defendant indicated that in the instructions received from him only late last week the defendant, Mr Patel, confirmed that he no longer opposed the plaintiff’s application for summary judgment on the claim outlined in the Public Trust’s statement of claim against him.

[6]      Further,  Ms  Ritchie  confirmed  that  the  counter-claim  the  defendant  had brought against the plaintiff filed on 28 February 2011 was no longer going to be pursued by the defendant.

[7]      As an aside, that counter-claim had been the subject of a defence filed by the Public Trust as counter-claim defendant on 1 April 2011 and at that time an application for summary judgment was brought by the plaintiff (as counter-claim defendant) on the defendant’s counter-claim.  Effectively, with confirmation from the

defendant  that  he no  longer wished  to  pursue  that  counter-claim,  the  plaintiff’s

summary judgment application as counter-claim defendant was unopposed.

[8]      As general background to this proceeding I note that it is in action to recover a debt from the defendant as guarantor under a guaranteed loan originally made by FM Custodians to a company operated by the defendant, Quarterdeck Residences Limited (now struck off).

[9]      In  addition  to  the  guarantee,  the  loan  was  also  secured  by  a  mortgage registered over 2 apartments in New Plymouth owned by Quarterdeck Residences Limited.

[10]     Those two apartments were sold by way of a mortgagee sale some time ago and, as I understand the position, the sale proceeds were insufficient to repay the guaranteed loan, leaving a shortfall of approximately $470,000.00.

[11]     Originally, the defendant opposed the plaintiff ’s claim to recover this debt, interest and costs from him on the basis first, that proper notice of the assignment of this original loan from FM Custodians to the current plaintiff was not provided, secondly that default notices under the Property Law Act had not been properly served, thirdly that the plaintiff, Public Trust, did not take adequate steps to market and sell the apartment securities thus failing to obtain the best price reasonably obtainable at the time of sale and finally, allegations of delay in enforcement of the guarantee were made.

[12]     As I have noted above, these defences have, however, now fallen away as the defendant no longer opposes the plaintiff’s summary judgment application.

[13]     On this substantive application itself, counsel for the plaintiff has now filed a memorandum as to the quantum of relief sought.

[14]   Having considered that memorandum, the plaintiff’s statement of claim, supporting affidavits and other material on the file relating to this proceeding, and given that the application is effectively now unopposed, summary judgment is now

granted to the plaintiff against the defendant on the plaintiff’s claim in his statement of claim for the following:

(a)       The amount claimed in the statement of claim being $470,480.50;

(b)Interest  on  this  sum  of $470,480.50  at  the  rate  of  16.7%  p.a.  as claimed in the statement of claim from 23 Feb 2010 until 4 April 2011 (being 405 days at $215.26 per day) = $87,180.30.

(c)       Total amount = $557,660.80.

[15]     In addition, an order is made that interest continues to accrue on the judgment debt at the rate of 16.7% p.a. from today’s date until the date the debt is paid pursuant to clause 8(b) of the Loan Agreement between the plaintiff and Quarterdeck Residences Limited and the defendant and clause 5.4 of the Guarantee between the defendant and the plaintiff.

[16]     In  addition,  costs  are  awarded  to  the  plaintiff  on  a  solicitor/client  basis pursuant to clause 5(a) of the Loan Agreement and clause 9.1 of the Guarantee in accordance with the tax invoices attached to the plaintiff’s memorandum as to quantum totalling $46,038.50.

[17]     In addition, disbursements are awarded to the plaintiff on the following basis:

(a) (b)	Filing fee on statement of claim Sealing fee	$1,124.44 $     40.89
(c)	Filing fee on statement of defence to defendant’s counter-claim	$     92.00
(d)	Service fees	$   408.06
TOTAL	$1,665.39

[18]     This takes the total of all the above amounts to $605,364.69.

[19] In summary, the amount for which summary judgment is now granted to the plaintiff on his substantive claim against the defendant is $605,364.69 together with interest continuing to accrue as noted above at [15].

[20]     Turning now to the defendant’s counter-claim filed in this proceeding, as I have noted above, on 1 April 2011 the defendant filed an Application as counter- claim defendant for Summary Judgment against the defendant as counter-claim plaintiff on his counter-claim.

[21]     At para [6] above I have noted that Ms Ritchie confirms that the defendant is not intending to pursue this counter-claim.   As best I can tell, that counter-claim appears to seek amongst other things damages for what the defendant originally contended was an inadequate sale process conducted by the plaintiff with respect to the two apartments which were held as security.

[22]     As the defendant no longer intends to pursue this counter-claim then, as I see the position, there seems no alternative but for the plaintiff’s summary judgment application as counter-claim defendant to succeed.

[23]     That said, summary judgment is now granted to the plaintiff as counter-claim defendant on its defence to the defendant’s counter-claim against the plaintiff.  An order to this effect is now made.

[24]     So far as costs and disbursements on this second application are concerned, as I understand the position they are included in the costs and disbursements award I have noted above. That effectively deals with this matter.

‘Associate Judge D.I. Gendall’