Rhind (pka Edwards) v Stevenson - [2022] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-000376

[2022] NZHC 1594

BETWEEN
CHERIE BERYL RHIND (previously known as CHERIE BERYL EDWARDS)

Appellant

AND

IAN LESLIE STEVENSON

Respondent

STEVENSON ACCOUNTING LIMITED

Second Respondent

Hearing: 21 June 2022

Appearances:

M J Fisher for the Appellant N C King for the Respondent

Judgment:

6 July 2022

JUDGMENT OF TAHANA J

This judgment was delivered by me on 6 July 2022 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Jones Howden, Barrister & Solicitors, Matamata Noel King Barrister, Auckland
Erskine Chambers, Auckland

RHIND v STEVENSON [appeal] [2022] NZHC 1594 [6 July 2022]

Introduction

[1] This is an appeal against the decision of Judge G M Harrison not to strike out Mr Stevenson’s (the Respondent’s) amended claim to recover a debt owed by Ms Rhind (the Appellant).1 Judge Harrison found that Ms Rhind was obliged to repay the debt on 14 August 2015 when the property of Edwards Family Trust was sold.2 Mr Stevenson filed his amended claim on 12 April 2021, which was within the six year statutory time frame.3

[2] Ms Rhind appeals and says the Judge erred because on a proper construction of the agreement, the debt was due on 18 January 2007 so that the amended claim is time barred.

[3] I therefore need to determine when the debt was payable and whether the amended claim was filed within six years of that date.

Background

[4]Mr Stevenson made various loans to Ms Rhind prior to January 2007.

[5] On 18 January 2007, Mr Stevenson and Ms Rhind (who was then known as Cherie Beryl Edwards) signed a document entitled “Settlement, Acknowledgment and Guarantee Agreement” (the Agreement). The parties to the Agreement were Cherie Beryl Edwards (CBE), Edwards Family Trust (EFT) and Ian Leslie Stevenson (ILS).

[6]Ms Rhind signed the Agreement in two capacities:

(a)personally as borrower and guarantor; and

(b)as trustee of the Edwards Family Trust as “property owner, borrower and guarantor.”

1 Stevenson v Rhind [2022] NZDC 3071.
2 At [28].
3 At [28].

[7]The Agreement expressly referred to a first agreement for repayment of

$40,000 and a second agreement for repayment of $70,000 (plus interest) if the
$40,000 was not paid by 31 May 2007. The Agreement included the following relevant clauses:

CBE and EFT agree (on a joint and severally irrevocable basis) to pay ILS the monies as follows (The first agreement): -

…

3.CBE and EFT will not at anytime act in such a way that the security of ILS will be jeopardized such that loss is caused to ILS, delay in payment, CBE will complete all such things, instructions or otherwise so that the obligations under this agreement will be met on a timely basis.

4.All parties agree and acknowledge that this agreement is not intended or construed to secure a better position for ILS.

…

7.Should for any reason this agreement be disputed, overturned…

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 Rhind (pka Edwards) v Stevenson

Details

AGLC: Rhind (pka Edwards) v Stevenson [2022] NZHC 1594
Case: [2022] NZHC 1594
Decision Date: 6 July 2022

CaseChat Overview and Summary

The appeal before the Court was brought by Cherie Beryl Rhind, also known as Cherie Beryl Edwards, against Ian Leslie Stevenson. The central dispute was whether a debt owed by Ms Rhind to Mr Stevenson was statute-barred. The case was heard in the High Court of New Zealand, Auckland Registry. The legal issues before the Court were to determine the date by which the debt was payable under the terms of the Settlement, Acknowledgment, and Guarantee Agreement, and whether Mr Stevenson's amended claim was filed within the statutory six-year limitation period. The Court examined the language of the Agreement, particularly focusing on clauses that specified the terms of payment and the due dates. The Court concluded that the debt was not payable until the Tamihana Street property was sold or refinanced. This interpretation was based on the plain meaning of the Agreement, which indicated that the debt would be paid upon the sale or refinance of the property or by 31 May 2007. The Court further held that the act or omission giving rise to the claim was the failure to repay the debt upon the sale of the property on 14 August 2015. As the amended claim was filed within six years of this date, it was within the statutory limitation period. Consequently, the appeal was dismissed, affirming the decision of the District Court that the amended claim was not statute-barred.

Orders