Season Sheen Opportunity Ii Limited v Chen
[2025] NZHC 1482
•6 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-295
[2025] NZHC 1482
BETWEEN SEASON SHEEN OPPORTUNITY II LIMITED
PlaintiffAND
YAWEN CHEN
Defendant
Hearing: On the papers Appearances:
TB Fitzgerald and HE Cassone for the Plaintiff Y Chen, Defendant in Person
Judgment:
6 June 2025
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
(Quantum)
This judgment was delivered by me on 6 June 2025 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Bell Gully, Auckland
SEASON SHEEN OPPORTUNITY II LTD v CHEN [2025] NZHC 1482 [6 June 2025]
Introduction
[1] In my judgment dated 29 November 2024, I granted Season Sheen’s application for summary judgment on liability but adjourned the application as to quantum to allow for further submissions and evidence to be filed (Liability Judgment).1
[2] The further submissions and evidence directed were to address the following issues:
[87] …
(a)providing evidence of the sale proceeds received and the dates of receipt and updating the Court as to any further sale proceeds received since 4 June 2024 and the date on which they were received;
(b)providing the basis, if any, for applying the sale proceeds to Tranches 1A and 1B in a manner different to that set out above at [53];
(c)including schedules for Tranche 1A and 1B recalculating the quantum payable on the basis of:
(i)the updated evidence of original and any further sale proceeds;
(ii)default interest only being payable from 5 August 2022 and only to be capitalised on 31 May 2024 with no default interest payable on the capitalised amount of default interest and no further default interest capitalised;
(iii)standard interest and line fees only to be capitalised on the last working day of each month in addition to 5 August 2022;
(iv)including rental of $65,214.70 on the dates received (unless further submissions made as to why it should not be included); and
(v)the drawdown of $100,000 on 28 November 2023 is not to be included in the amount owing;
(d)providing further evidence and a breakdown of the legal costs, charges and expenses claimed previously and the credit held by Bell Gully and when it was received; and
1 Season Sheen Opportunity II Limited v Chen [2024] NZHC 3613 [Liability Judgment].
(e)providing evidence of any further costs and disbursements claimed including a breakdown by task, hourly rate and staffing level.
[3] Season Sheen has filed a memorandum together with a further affidavit by Mr Peter Law on behalf of Season Sheen as directed.
[4] Mr Chen was to have an opportunity to respond to the further memorandum and evidence but has not done so. Sufficient time has been allowed and so I now consider the plaintiff’s further submissions and evidence as to quantum.
[5] Mr Law has filed a sixth affidavit for Season Sheen recalculating quantum in accordance with the directions in the Liability Judgment as appendix A, with the Amount Outstanding under the Facility Agreement calculated as $12,385,516.60.2
[6] In addition, Mr Law provides an alternative updated calculation as Appendix B, claiming $13,395,098.16. Season Sheen seeks leave to do so on the basis that:
(a)judgment has been entered on liability, but not quantum;
(b)the Liability Judgment has not yet been sealed; and
(c)it is in the interests of justice for Season Sheen to be allowed the opportunity to make additional submissions on certain aspects of quantum because the Court’s directions on some issues as to quantum were made without having heard submissions (the issues not having previously been raised by Mr Chen).
[7] Season Sheen submits that if the issues are not raised now then it is likely to lead to an appeal, or application for leave to make a second summary judgment application which would introduce significant additional complexity, time, and cost to the claim.
2 All capitalised terms, if not defined in this judgment, are as defined in the Liability Judgment or in the Facility Agreement.
[8] In the unusual circumstances of this case, I consider it is appropriate to allow the further submissions. Mr Chen is acting for himself and did not challenge the specific amounts calculated as owing. Rather he made a general submission that he did not understand how the numbers had been calculated and asked that the Court ensure the calculations are correct.
[9] I agree that the submissions made arise from the directions as to quantum, rather than the issues on which judgment for liability has been entered. Furthermore, I accept that some of the issues raised in the Liability Judgment in respect of quantum are not issues on which Season Sheen has had the opportunity to make submissions.
[10] I therefore consider Season Sheen’s further submissions and evidence before determining quantum. The following matters are raised:
(a)Season Sheen seeks to amend the basis for calculation in [87](c)(ii) of the Liability Judgment (as set out above) maintaining that default interest is payable from 5 February 2022, rather than 5 August 2022, and ought to be capitalised on both 31 May 2024 and on 20 December 2024.
(b)Season Sheen further submits that contrary to [87](c)(iii) above, it is appropriate to capitalise standard interest as Season Sheen had elected to do rather than only in accordance with default monthly capitalisation dates.
(c)Further evidence has been provided in respect of the sale proceeds and submissions as to the application of those proceeds to Tranches 1A and 1B of the loan as referred to in [87](b).
(d)In addition, evidence has been provided in respect of the rental received, the drawdown of $100,000 and legal costs.
Default interest accrual date: 5 February or 5 August 2022?
[11] In paragraph [62] of the Liability Judgment, I directed that default interest is only to accrue from 5 August 2022, rather than from 5 February 2022 as had been included in the calculations annexed to Mr Law’s fourth affidavit.
[12] Following the hearing, but prior to issuing the Liability Judgment, I sought further explanation as to why default interest had been charged from 5 February 2022 when the pleaded default was a breach of cl 10.1 of the Facility Agreement, being the failure to repay amounts owing under Tranche 1 by 5 August 2022.
[13] In response, a further affidavit of Mr Law (the fifth) was filed, together with a memorandum, explaining that default interest accrues in two circumstances under the Facility Agreement, the first in relation to each unpaid amount due and payable and the second as an automatic consequence of an event of default.
[14] Season Sheen agreed the first circumstance was relied on, the failure to pay the principal amount when it was due and owing on 5 August 2022. But Season Sheen submitted that the second circumstance was also engaged because three Events of Default, as defined in the Facility Agreement, occurred before 5 August 2022. The three Events of Default were failing to ensure that:
(a)by month six from Financial Close (5 February 2022), total settlements of $15,698,000 (excluding GST and costs) from Stage One Units were to occur (as set out in Item 7 of the Key Details of the Facility Agreement) (Milestone Undertaking);
(b)by month 6 from Financial Close (5 February 2022), total Qualifying Pre-Sale Contracts of a minimum of $30,000,000 (excluding GST and costs) from Stage Two Units were achieved (as set out in Item 6 of the Key Details of the Facility Agreement) (Minimum QPS Undertaking); and
(c)the Latest Completion Date for Stage 1 was not later than the date 4 months before the Final Repayment Date for Stage 1 (as set out in
Item 6 of the Key Details of the Facility Agreement) (Latest Completion Date Undertaking).
[15] Clause 10.1(b) of the Facility Agreement states that an Event of Default occurs for breach of an undertaking in two circumstances:
(a)where there is a breach of, among other clauses, cl 9.14 of the Facility Agreement which provides for various undertakings including the Milestone Undertaking (cl 10.1.(b)(i)); and
(b)where there is a breach of any other covenant or undertaking given to Season Sheen under a Finance Document and, if capable of remedy, the breach is not remedied within 10 business days of its occurrence (cl 10.1 (b)(ii)).
[16] Season Sheen submitted that Austino breached the Milestone Undertaking. Therefore, an Event of Default occurred on 5 February 2022 and Season Sheen was entitled to charge default interest on the amount outstanding pursuant to cl 14.3(b) of the Facility Agreement from that date.
[17] Season Sheen further submitted that Austino failed to satisfy the Minimum QPS and the Latest Completion Date Undertakings. Austino was required to remedy both of these breaches within 10 Business Days and Season Sheen says it failed to do so. Therefore, further Events of Default occurred.
[18] Mr Law attaches a letter to his fifth affidavit sent on 12 July 2022 to Austino and Mr Chen in relation to these Events of Default. The letter advised that the consequence of the Events of Default was that Season Sheen was entitled to charge interest at the Default Interest rate. Mr Law does not give evidence as to whether there was a response to this letter.
[19] Despite this evidence, in the Liability Judgment I declined to enter summary judgment for default interest from 5 February 2022 as the statement of claim only relied on the failure to repay the principal by 5 August 2022.3
[20] I accept that the breach of the Milestone Undertaking automatically allowed Season Sheen to charge default interest and that this default occurred on 5 February 2022. It is unnecessary therefore to determine the position in respect of the remaining undertakings.
[21] Season Sheen now submits that the accrual of default interest from 5 February 2022 is within the scope of the original pleading. This is because the claim against Mr Chen is as guarantor of Austino’s liability and the allegations as to Austino’s liability at paragraphs 26 and 27 of the statement of claim include that Austino was required to repay all amounts owing under Tranche 1 by 5 August 2022, and that Austino failed to make that payment. The amount owing under Tranche 1 as at 5 August 2022 was not only the principal advanced, but also the interest that had accrued on the principal advanced. Paragraph 41 of the statement of claim quantifies that liability as at the date of the statement of claim and that quantification includes default interest applied from 5 February 2022.
[22] Season Sheen acknowledges that its focus was on the principal breach (i.e. the failure to repay the principal amount), and that it did not specifically advance the basis on which either default or standard interest first began to accrue but submits that had Mr Chen raised the issue, it certainly would have done. In any event Season Sheen submits the pleading properly identifies the contract, the liability, and the quantum including default interest so that Mr Chen was fairly on notice of the amount sought.
[23] Season Sheen says further that position was clear from Mr Law’s fourth affidavit as it included Season Sheen’s updated quantum allegation based on default interest accruing from 5 February 2022. That affidavit, and the ones previously, were advanced as updates on the quantum Season Sheen was seeking in the proceeding. Season Sheen accepts it did not formally amend its statement of claim but submits there can be no doubt it was clear to both Mr Chen and the Court that the amounts
3 Liability Judgment, above n 1, at [61].
claimed in the spreadsheet were the amounts for which Season Sheen was pursuing judgment.
[24] Importantly, Season Sheen says the issue was squarely before the Court and Mr Chen because a minute was issued prior to judgment directing Season Sheen to file a memorandum explaining why default interest was charged from 5 February 2022 (among other things) and Mr Chen was given an opportunity to respond. Season Sheen submits Mr Chen’s only objection remained that interest charges should cease “as of the date when the lender assumed control of the project and its assets”.
[25] Season Sheen contends that even if the default interest date had been specifically pleaded, there is no other information that would have been provided to Mr Chen or the Court, and no opportunity for Mr Chen to respond to it, other than what has already been provided.
[26] Season Sheen submits, in the alternative, that if the Court finds default from 5 February 2022 was not sufficiently pleaded, then leave is sought to amend its claim. It attaches to its memorandum a draft amended statement of claim, application for leave to amend and draft amended application for summary judgment.
[27] Season Sheen says that it would be in the interests of justice, and necessary in order to determine the real controversy between the parties, to allow Season Sheen to amend the pleading of its quantum allegations before judgment is entered on quantum.
[28] I accept that the quantum calculation relied on by Season Sheen included default interest accruing from 5 February, rather than from 5 August 2022, and that when explanation was sought, evidence of default from 5 February 2022 was given. But on a summary judgment application, it is for the plaintiff to establish that there is no arguable defence to its claim as pleaded and the statement of claim did not include a pleading that Austino defaulted on 5 February 2022.
[29] However I also accept that a Court may, before, at or after the trial of any proceeding, amend any defects and errors in the pleadings4 and the Court may, at any
4 High Court Rules 2016, r 1.9(1).
stage of a proceeding, make either on its own initiative or on the application of a party to the proceedings, any amendments to any pleading that are necessary for determining the real controversy between the parties.5
[30] Before doing so, Season Sheen accepts it is required to satisfy the “three formidable hurdles” referred to in Elders Pastoral Ltd v Marr:6
(a)the amendment would be in the interests of justice;
(b)it would not significantly prejudice the other party;
(c)or cause significant delay.
[31]In terms of these three hurdles, Season Sheen submits:
(a)It is in the interest of justice for the pleadings to be amended because the Amount Outstanding in the statement of claim has always included the application of default interest from 5 February 2022, and that issue was explicitly before the Court and Mr Chen for determination.
(b)Allowing the amendment to the pleading will not significantly prejudice Mr Chen because he has been fairly on notice of the amount sought by Season Sheen, including the default interest contained in the quantum, and indeed filed an affidavit setting out his response to this element of Season Sheen’s case.
(c)The amended pleading will not cause significant delay. Season Sheen submits that the application for leave could be dealt with on the papers and the parties’ respective positions are already before the Court.
[32] Season Sheen refers to Davern v QBE Insurance (Australia) Ltd, where the Court allowed the plaintiff to amend its statement of claim after judgment had been
5 High Court Rules 2016, r 1.9(2).
6 Elders Pastoral Ltd v Marr (1987) 1 NZPC 91, (1987) 2 PRNZ 383 at 385.
entered but where costs and interest had been reserved.7 In that case, the plaintiffs had failed to correctly plead the interest sought. The Court concluded that the amendment to correct the interest sought satisfied the “three formidable hurdles” because the defendant was always on notice that the plaintiffs sought interest, the costs were yet to be determined following the substantive judgment so there would be no significant delay and the defendant would not otherwise be prejudiced including because the amendment did not raise a new matter but particularised the existing claim.8
[33] Season Sheen submits that it is appropriate for default interest to be applied from 5 February 2022 because there does not appear to be any dispute that default interest is actually owing from that date, and it would be an unjustified windfall to Mr Chen not to include it in the quantum awarded. In circumstances where the true controversy was clearly identified and responded to, Season Sheen therefore requests leave to amend its pleadings, if the Court considers that it is necessary for it to do so.
[34] The draft amended pleading attached to Season Sheen’s memorandum only amends the description of the “Amount Outstanding” in paragraph [41] without separately pleading breach of the Milestone Undertaking.
[35] I accept that this detail is included in the subparagraph explaining the Amount Outstanding and the way it is calculated, including that the breach of the Milestone Undertaking constituted an Event of Default allowing default interest to accrue, but ordinarily the event of default would be pleaded separately to allow the defendant to clearly respond.
[36] However, Mr Chen has not specifically disputed that there was a breach of the Milestone Undertaking and Season Sheen suggests that leave may be sought for a second summary judgment application if the issues are not dealt with now.
[37] In these circumstances I consider that the three formidable hurdles, have been overcome. Otherwise, Mr Chen may simply be facing a further proceeding with the
7 Davern v QBE Insurance (Australia) Limited [2023] NZHC 2146, cited with approval in Chen v Huang [2024] NZCA 38 at [243]-[244].
8 At [33].
increased costs associated with that. I therefore grant leave to amend the pleading and accept it is appropriate for default interest to accrue from 5 February 2022.
Capitalisation of default interest
[38] In the Liability Judgment I recorded that default interest had been capitalised in the schedules prepared by Mr Law in his fourth and fifth affidavits from the dates that the Event of Default occurred. I held that although default interest automatically accrued from an Event of Default, it was not automatically due and payable as cl 14.4 of the Facility Agreement provided default interest must be paid on the date of a demand signed by two authorised officers of Season Sheen. Clause 14.5 then provided that interest that is not paid when due may be capitalised by Season Sheen, so only after demand.9
[39] I further held that the first time a letter of demand for default interest signed by two authorised officers of Season Sheen was sent was on 21 May 2024.10 Season Sheen does not seek to amend those findings but provides evidence that a further letter of demand signed by two authorised officers of Season Sheen was sent on 19 December 2024. I accept that default interest accrued between 31 May 2024 and the further letter on 19 December 2024 can therefore be capitalised on 20 December 2024 as Mr Law has done in Appendix B of his sixth affidavit.
Capitalisation of standard interest
[40] At [55] of the Liability Judgment, I accepted that cl 6.2 of the Facility Agreement, which provides for the capitalisation of standard interest, does not expressly provide for capitalisation after the Final Repayment Date, but I held that it was arguable that standard interest still ought to be capitalised monthly by reference to cl 14.5.
[41] Season Sheen submits in response that it is correct that the clauses relevant to capitalising standard interest are cl 6.2 and cl 14.5 but that the scheme of the Facility Agreement is that these two clauses operate at different times, with cl 6.2 operating
9 Liability Judgment, above n 1, at [63] to [64].
10 At [71].
when there is no default and cl 14.5 after default. Once default occurs, Season Sheen submits it was not restricted to capitalising interest on Interest Payment Dates, because that concept no longer had any application. Instead, cl 14.5 provides for Season Sheen to capitalise interest at any time, at its election. Season Sheen therefore submits that standard interest ought to be capitalised as Season Sheen elected to capitalise it, rather than only in accordance with monthly capitalisation dates.
[42] The Facility Agreement is not straightforward in terms of when standard interest is capitalised after default. If I accept Season Sheen’s submission that cl 6.2 applies prior to default and cl 14.5 from default onwards, with “Interest Payment Dates” no longer having any application, an available construction appears to be that from default, both standard and default interest are not payable until demanded as provided for in clause 14.4. This would mean that standard interest could only be capitalised following demand in the same way that Season Sheen has now accepted that default interest can only be capitalised. This creates difficulties for Season Sheen because although the first demand on 12 May 2024 may be able to be interpreted as a demand for both standard and default interest, the second demand sent on 19 December 2024 demands payment of accrued default interest of $346,817.32, which is only the 6 per cent default interest, and not the 7.49 per cent standard interest that is also payable.
[43] In my view the proper interpretation is that standard interest is only able to be capitalised monthly even after default because cl 14.5 only allows interest to be capitalised if “not paid when due” and standard interest continues to be payable, even after default, on the “Interest Payment Dates” in accordance with cl 6.1(c).
[44] Clause 14.5 expressly refers to standard interest being payable once default interest is capitalised in accordance with cl 6.1 and cl 6.1(c) provides that standard interest “subject to clause 6.2, is payable on the Interest Repayment Dates.” The fact that cl 6.2, which provides for capitalisation, no longer applies after default does not change when standard interest is payable – it is on the “Interest Payment Dates”. And any interest can only be capitalised under cl 14.5 if “not paid when due”.
[45] Season Sheen has also continued to capitalise line fees on “Interest Payment Dates” following the date of default even though cl 6.3(c) has a similar proviso to cl 6.2, in terms of applying only if a default has not occurred. The “Interest Payment Date” concept is therefore still being used by Season Sheen following default in respect of line fees.
[46] In terms of the total amount payable, requiring standard interest to be capitalised monthly rather than whenever Season Sheen elects, which Season Sheen has done in some cases daily, may not result in a significant difference to the total. But Mr Chen was particularly concerned about the way in which interest was charged and the option chosen by Season Sheen is not in my view an available option.
[47] In the circumstances I consider it is still appropriate for summary judgment to be entered for quantum, rather than delaying matters further when there may be no difference in the practical result. However, this will require recalculation of the Amount Outstanding in Appendix B as it will affect both the standard and default interest calculated. A final further calculation of quantum will therefore need to be provided as directed below.
Sale proceeds
[48] In the Liability Judgment I required further evidence to be provided on the Sale Proceeds received and the dates on which they were applied as the amounts and dates of the repayments in the evidence did not align with the numbers used in the calculation spreadsheets.11
[49] Mr Law’s updating affidavit explains that the differences arise because of differences between when Season Sheen received funds and when the funds were applied to the loan. Mr Law has now given further evidence on when sale proceeds were received and when they were applied to the loan and any differences in amounts, the differences arising as a result of the deduction of legal and bank fees and the treatment of GST.
11 Liability Judgment, above n 1, at [44] to [51].
[50] In terms of GST, Mr Law explains that when Season Sheen received the sale proceeds on 5, 6 and 7 December 2022, the GST was paid to it separately. At that point in time, Season Sheen had not made a decision about how it would treat the GST, with a choice to apply the GST to the Tranche 1 loan or to pay as GST.
[51] Mr Law says the 16 December 2022 letter sent to Austino and Mr Chen stated “Season Sheen reserves the right (without limiting any other right of the Lender) to require Gross Sale Proceeds (including GST) be applied in prepayment of the Amount Owing” and sought a response by 19 December 2022.
[52] Mr Law’s evidence is that no response was received. As a result, Season Sheen applied the GST from the sale proceeds as a repayment towards Tranche 1 on 23 December 2022 and this is the figure therefore recorded in both Appendices A and B.
[53] Mr Law has confirmed that Season Sheen has not received any further sale proceeds since 4 June 2024.
[54] I am satisfied following the explanations in Mr Law’s further affidavit that the sale proceeds have been appropriately applied in the calculations.
Allocation of sale proceeds between Tranches 1A and 1B
[55] In paragraph [52] of the Liability Judgment, I referred to the fact that sale proceeds were apportioned to Tranches 1A and 1B, but that the basis on which the proceeds were apportioned was not obvious. Clause 7.2 of the Facility Agreement provides that the borrower must apply the sale proceeds firstly to repayment of the principal outstanding “under Tranche 1”. There was no amendment to this clause in the Deed of Amendment when Tranches 1A and 1B were introduced and so I held that it was arguable that absent express agreement the sale proceeds should be applied to Tranche 1B first, Tranche 1B having an interest rate of 25 per cent compared to Tranche 1A of six per cent. However, I invited Season Sheen to make further submissions on the basis for applying the repayment in a different way.
[56] Season Sheen now confirms that the sale proceeds have been applied to the two parts of Tranche 1 on a pro rata basis and submits that this is consistent with the
Facility Agreement and is also equitable. Furthermore, Season Sheen says it is not arguable that the Facility Agreement or any principle of law requires Season Sheen to allocate the repayment to Tranche 1B first.
[57] Season Sheen submits that in the absence of any agreement as to how repayments ought to be allocated, common law principles apply, referring to the following summary in Laws of New Zealand:12
Where several distinct debts are owing by a debtor to a creditor, the debtor has the right, when making a payment, to appropriate the money to any of the debts that the debtor pleases; and the creditor is bound, if the creditor takes the money, to apply it in the manner directed by the debtor. If the debtor does not make any appropriation at the time when they make the payment, the right of appropriation devolves on the creditor.
An appropriation by the debtor need not be made in express terms, but must be communicated to the creditor or be capable of being inferred. It may be inferred where the nature of the transaction or the circumstances of the case are such as to show that there was an intention to appropriate.
[58] Season Sheen submits that as no appropriation was made by Mr Chen, Season Sheen has the right to appropriate the payment to any of the outstanding debts by pro rating the sale proceeds to Tranche 1A and Tranche 1B.
[59] I accept that there is no evidence that Mr Chen appropriated payment to Tranche 1B first and so accept that pro rating the sale proceeds to Tranches 1A and 1B was an available option to Season Sheen. It is appropriate therefore for the calculation of quantum to reflect this.
Rental received
[60] In paragraphs [78] and [79] of the Liability Judgment, I recorded that Austino had received rental income while in receivership, as set out in reports from the receiver, Bryan Williams, (Receiver), recording that $65,214.70 was received.
12 Stephen Todd and Matthew Barber Laws of New Zealand Contract (online ed) at [312] (footnotes omitted), cited in AS Base Ltd v IMI Developments Ltd [2017] NZHC 1017 at [85]. See also Sociedad Agricola Topagri Ltda v BBC Technologies Ltd [2014] NZCA 253 at [21] where the Court states “The law in relation to allocation of payments in a current account situation is that a debtor has the right to allocate a payment toward a particular debt. If the debtor fails to do that at the time of payment, then the right of appropriation passes to the creditor”.
[61] Counsel for Season Sheen points out that this rental income was earned by Austino, not Season Sheen, and in receiving and reporting on that income, the Receiver was acting as the agent of Austino, the borrower, not Season Sheen. Mr Law has confirmed that no rental income has been received by Season Sheen and says his understanding is that the rental income was applied to expenses of the receivership with the Receiver’s reports disclosing the substantial expenses incurred.
[62] I accept that Season Sheen has established that it has not received any rental income and so no amount for rental needs to be included in the calculations.
$100,000 drawdown on 29 November 2023
[63]In the Liability Judgment I recorded that the Tranche 1A schedule includes a
$100,000 drawdown on 28 November 2023 that was not mentioned otherwise in the pleadings, evidence or submissions and so for the purposes of summary judgment that amount was not to be included in the calculation of quantum. 13
[64] Mr Law gives evidence in his sixth affidavit that the $100,000 drawdown on 29 November 2023 was attributable to $100,000 in expenses that Season Sheen paid on behalf of Austino.
[65] Mr Law deposes that in the time available he has only been able to locate a Preservation Demand notice dated 29 November 2023, which relates to $29,385.09 of those expenses. Season Sheen requests that at least these expenses be included in the final quantification and so includes them in the Appendix B calculation.
[66] I accept that these expenses were incurred on behalf of Austino, paid by Season Sheen and demanded in terms of cl 10.2 of the General Security Deed dated 4 August 2021 and so can be added to the Amount Outstanding as set out in Appendix B.
Drawdown on 20 December 2024
[67] Mr Law gives evidence of a further drawdown of $121,672.89 on 20 December 2024, explaining that these funds were advanced to the Receiver on account of the
13 Liability Judgment, above n 1, at [80].
Receiver’s costs and that they are a deemed drawing under the Facility Agreement and can also be claimed under cl 12.1 of the Facility Agreement.
[68] Again, I accept that it is appropriate for this further $121,672.89 drawdown to be included in the final quantification.
Legal fees and disbursements
[69] Season Sheen is entitled to legal costs and expenses on a solicitor and own client basis or a full indemnity basis, whichever is higher, in accordance with cl 12.1(b) of the Facility Agreement. Mr Law attaches copies of invoices for legal costs, charges and expenses of $178,263.01. This comprises $138,241.49 (being the legal costs and expenses sought at the summary judgment hearing), as well as further legal costs, charges and expenses as at 3 October 2024 of $40,021.52.
[70] A breakdown has been provided as directed by hourly rate, staffing level and task.
[71] I am satisfied that it is appropriate for these costs to be included in the final judgment sum.
Interest
[72] Finally, I record that interest will be awarded as sought in the statement of claim (and amended statement of claim) at six percent above the relevant interest rate for each tranche in the Facility Agreement and Deed of Amendment pursuant to ss 22 and 23 of the Interest on Money Claims Act 2016.
Recalculation of the Amount Outstanding
[73]Season Sheen is therefore to file and serve a further calculation table by
19 June 2025 with Mr Chen to have an opportunity to respond by 27 June 2025.
[74] Final orders will then be made on the papers determining the Amount Outstanding, with interest and costs as determined above.
Associate Judge Sussock
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