Renner v Renner - [2015] NZHC 2451

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-569 [2015] NZHC 2451

BETWEEN
IAN RODNEY RENNER

Plaintiff

AND

CATHERINE MARY RENNER First Defendant

IAN LUKE DUSTIN Second Defendant

Hearing: (On the papers)

Counsel:

C T Gudsell QC for Plaintiff
W T Nabney for First Defendant

Judgment:

7 October 2015

JUDGMENT OF BREWER J (Costs)

This judgment was delivered by me on 7 October 2015 at 5:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Mackenzie Elvin (Tauranga) for Plaintiff
Lyon O’Neale Arnold (Tauranga) for First Defendant
(Copy to Second Defendant in person)

RENNER v RENNER [2015] NZHC 2451 [7 October 2015]

Introduction

[1] In my judgment delivered on 11 June 2015, I held that the plaintiff, Mr Renner, was successful in his claim for contribution against the first and second defendants, Mrs Renner and Mr Dustin respectively, as co-guarantors.1

[2] I omitted, however, to deal with Mr Renner’s claim for interest on the judgment sums. Mr Renner and Mrs Renner agree that interest has accrued on the judgment sums but they disagree on the date from which the interest accrues. This judgment deals with that issue.

[3] Mr Renner also seeks increased costs under r 14.6(3)(b)(v) of the High Court

Rules on the basis of a “without prejudice save as to costs” settlement offer dated

12 May 2015 (“the Settlement Offer”). This judgment deals also with that

application.

Issues

[4] Accordingly, the issues that I must address are:

(a) On what date did interest on the contribution begin to accrue?

(b)What are the costs and disbursements to which Mr Renner is entitled on a 2B basis?2

(c) Is Mr Renner entitled to increased costs?

On what date did interest on the contribution begin to accrue?

Principles

[5] A guarantor can recover interest from his co-guarantor on the sum due for contribution. It is a well-established principle that the interest is calculated from the
date on which the guarantor’s payments exceed the guarantor’s proportionate share

1 Renner v Renner [2015] NZHC 1315.
2 The basis on which I awarded costs.

of the common liability.3 Where one guarantor overpays the debt in excess of his fair share, there is an implied contract between all the co-guarantors to indemnify the overpaying guarantor for the amount which he paid in excess of his obligation. An award for contribution is in the nature of contractual damages and so requires the other co-guarantors to put the overpaying guarantor in the same position he would have been in if the other co-guarantors had honoured their obligations to guarantee the debt.4

The parties’ submissions

[6] Mr Gudsell QC submits that Mr Renner is entitled to interest on the contributions recoverable from Mrs Renner and Mr Dustin from 12 October 2011, being the day after Mr Renner paid $1,320,000 to FM Custodians Ltd pursuant to the guarantee.

[7] Mr Nabney accepts that Mr Renner is entitled to interest on the contributions. But he submits it would be inequitable to require the payment of interest…

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 Renner v Renner

Details

AGLC: Renner v Renner [2015] NZHC 2451
Case: [2015] NZHC 2451
Decision Date: 7 October 2015

CaseChat Overview and Summary

In Renner v Renner, the plaintiff, Ian Rodney Renner, successfully claimed contribution from the first defendant, Catherine Mary Renner, and the second defendant, Ian Luke Dustin, as co-guarantors. The court was required to determine the date from which interest on the contribution sums began to accrue, the costs and disbursements to which Mr Renner was entitled, and whether Mr Renner was entitled to increased costs based on a settlement offer. The court held that interest on the contribution began to accrue from 12 October 2011, the date on which Mr Renner paid the guaranteed amount. The court calculated the interest owed by Mrs Renner and Mr Dustin and determined the costs and disbursements to which Mr Renner was entitled. The court declined to grant increased costs to Mr Renner, finding that Mrs Renner's rejection of the settlement offer was reasonable and did not contribute unnecessarily to the time or expense of the proceeding. The court ordered Mrs Renner to pay interest of $34,160.00 on the sum of $186,666.67, and Mr Dustin to pay interest of $103,700.00 on the sum of $566,666.67. Mrs Renner and Mr Dustin were jointly and severally liable to pay Mr Renner $43,100.50 in costs, $3,482.50 and $895.50 respectively in additional costs, and $30,845.15 in disbursements.

Orders