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R v Singh

R v Singh

Case [2015] NZHC 2369 29 September 2015

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-274 [2015] NZHC 2369

BETWEEN
KATHLEEN MULLIGAN

Plaintiff

AND

ROSEMARY RHODES First Defendant

DONALD RHODES Second Defendant

Hearing: 29 September 2015

Appearances:

J M Skinner for Second Defendant, in support
A G Stuart for Plaintiff, to oppose

Judgment:

29 September 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Webster Malcolm Law (Alan Stuart) Warkworth for Plaintiff
Skinners Law (James Skinner) Auckland, for Defendants

MULLIGAN v RHODES [2015] NZHC 2369 [29 September 2015]

[1] Donald Rhodes, the second defendant, applies to set aside a judgment given on 31 March 2015 and for a stay of enforcement.

[2] The plaintiff, Kathleen Mulligan, sued Mr and Mrs Rhodes under a deed of acknowledgment of debt of 11 July 2008 for repayment of a loan of $684,857 plus interest. She applied for summary judgment. Neither Mr Rhodes nor Mrs Rhodes opposed. She obtained summary judgment for the amount of the loan, plus interest and costs, a total of $787,175.95. On 27 May 2015 Mrs Mulligan lodged a charging order against a property owned by Mr and Mrs Rhodes at Woodhill (lot 1 DP135416, identifier NA79D/659). She obtained a sale order shortly afterwards. Mr Rhodes made the present applications after a bailiff visited him following the sale order being lodged in court.

Background

[3] Kathleen Mulligan is an 89-year-old widow living in a rest home. Her daughter, Patricia Sullivan, holds an enduring power of attorney in respect of property for her. Mrs Sullivan is effectively managing this proceeding on behalf of her mother.

[4]      Mrs Mulligan has two daughters, Mrs Sullivan and Mrs Rhodes, the first defendant.   Mr and Mrs Rhodes married in March 1974. They separated in April
2012.   They have two adult children.   Mrs Mulligan and her late husband, Tom, owned an 11-acre property just to the north of Warkworth. Later, after Tom’s death, the property was subdivided and one lot was sold off. That was in 2008. From the sale proceeds Mrs Mulligan made an advance to Mr and Mrs Rhodes of $667,357. That transaction was recorded in a deed of acknowledgment of debt dated 11 July
2008. It also recorded a further loan of $17,500, so that the total amount advanced by Mrs Mulligan to Mr and Mrs Rhodes was $684,857.   The deed of acknowledgment of debt says:

This Deed is made this 11th day of July 2008

WHEREBY DONALD SYDNEY RHODES and ROSEMARY RHODES (“the Borrowers”) hereby acknowledge that they are indebted to KATHLEEN MULLIAN (“the Lender”) in the sum of SIX HUNDRED AND EIGHTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY SEVEN DOLLARS ($684,357.00) (being advances made to date of
$17,500.00 together with a further advance of $667,357.00 the receipt of which sum is hereby acknowledged) and which sum the Borrowers agree to
repay upon demand in writing made by or on behalf of the Lender and
pending demand they will pay the Lender such interest as the Lender shall demand in writing from time to time (not…

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.

Continue reading R v Singh

Details

AGLC: R v Singh [2015] NZHC 2369
Case: [2015] NZHC 2369
Decision Date: 29 September 2015

CaseChat Overview and Summary

The High Court of New Zealand Auckland Registry was presented with a case involving Kathleen Mulligan suing Donald and Rosemary Rhodes for repayment of a loan of $684,857 plus interest. The plaintiff, Mulligan, sought summary judgment against the Rhodes, who did not oppose the application. As a result, the court granted summary judgment in favor of Mulligan for the amount of the loan, plus interest and costs, totaling $787,175.95. Subsequently, Mulligan obtained a charging order against a property owned by the Rhodes, followed by a sale order. Donald Rhodes then applied to set aside the judgment and for a stay of enforcement. The court had to determine whether Rhodes had a substantial ground of defense and whether there was a miscarriage of justice that warranted setting aside the judgment. After considering the arguments and evidence presented, the court found that Rhodes had not shown a substantial ground of defense. The court emphasized the importance of the clear meaning of the deed of acknowledgment of debt, which outlined the terms of the loan and the obligation to repay upon demand. The court also noted the context of the inter-generational transaction and the potential implications of gift duty. Consequently, the court dismissed Rhodes' application to set aside the judgment and denied the application for a stay of enforcement. Mulligan was awarded costs on a 2B basis for successfully resisting both applications.

Orders