Sheat v Boulton

[2012] NZHC 177

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-002435 [2012] NZHC 177

BETWEEN  WARREN THOMAS SHEAT AND LYNLEY MAY SHEAT

Plaintiffs

ANDJOHN ROBERT BOULTON Defendant

Hearing:         15 February 2012

Appearances: G M Brodie for plaintiffs

M Dollimore for defendant and defendant in person after Mr

Dollimore withdrew

Judgment:      15 February 2012

JUDGMENT OF CHISHOLM J

[1]      The plaintiffs seek $80,922 which they allege was a refundable deposit paid by them to the defendant in relation to a hay baler.  They contend that the baler was not delivered and that they are now entitled to a return of the deposit.   Summary judgment is sought for that amount and that application will be heard on 16 April

2012.

[2]      Mr  Boulton  denies  that  the  payment  was  a  refundable  deposit.     His contention, in broad terms, is that it was part payment of the purchase price and that he was not required to deliver the baler until the purchase price had been paid in full.

[3]      Both sides have filed affidavits relating to the summary judgment application.

[4]      In the belief that Mr Boulton was about to leave New Zealand with the intention of living in the United States on a permanent basis, the plaintiffs made application for two ex parte orders:   arresting Mr Boulton and a freezing order.

French J declined to make an order for Mr Boulton’s arrest.  She also declined to

SHEAT V BOULTON HC CHCH CIV-2011-409-002435 [15 February 2012]

make a freezing order without notice because there was no evidence before her as to Mr Boulton’s assets in New Zealand.   On the other hand, she accepted that the plaintiffs had a good arguable case against Mr Boulton and that the plaintiffs’ concerns about his conduct were made in good faith and appeared to have some evidential foundation.[1]

[1] See French J’s minute of 8 February 2012

[5]      The matter was adjourned until today on the basis that Mr Boulton was to be served.   There was also an order that by 5 p.m. on Monday 13 February 2012

Mr Boulton  was  to  file  and  serve  an  affidavit  disclosing  with  particularity  the whereabouts of the sum of $80,922 paid to him, annexing copies of all bank statements   and   other   documents   which   might   sufficiently   account   for   the whereabouts and application of the funds, and disclosing a complete list of all assets owned by him, or in respect of which he holds a beneficial interest.

[6]      An affidavit was filed by Mr Boulton within the specified timeframe.  This morning Mr Dollimore, the solicitor on the record for Mr Boulton, sought leave to withdraw.  He was granted leave to withdraw as counsel.  However, as Mr Brodie pointed out, Mr Dollimore’s firm will remain the address for service unless and until a new address for service is filed.  Leave to withdraw is granted on that basis.

[7]      Following Mr Dollimore’s withdrawal Mr Boulton represented himself.  He is opposed to a freezing order because he says it is unnecessary, he is not going anywhere, and he is staying in New Zealand at the present time.  He also expressed concerns about the impact of a freezing order on his income situation.

[8]      As explained to Mr Boulton, I am satisfied that the information currently before the Court justifies a freezing order.  I agree with French J that a good arguable case on the summary judgment application is disclosed.   It is now confirmed that there are assets in New Zealand and I am satisfied that there is sufficient evidence of dissipation to justify the making of the order.  In particular, there is evidence in the affidavits of Mr McEvedy and Ms Sheat, as well as Mr Boulton’s first affidavit.

[9]      There will be a freezing order accordingly.

[10]     Given that the summary judgment matter is to be heard relatively soon it is appropriate to make the following orders;

(a)       until further order of the Court none of the respondent’s assets are to

be:

(i)       removed from New Zealand or from a place inside or outside

New Zealand;

(ii)disposed of, dealt with, or diminished in value (whether the assets are inside or outside New Zealand);

(b)this will not, however, prevent the sale of the John Deere tractor, home-built trailer or trailing implements, so long as the proceeds of sale are paid into a trust account approved by the Court.   In other words, the prior approval of the Court to those sales will be necessary.

[11]     When making the order I also take into account that Mr Boulton is operating as an agricultural contractor. This is in response to his point about income.

[12]     Included  in  the  assets  listed  in  Mr  Boulton’s  affidavit  is  a  mortgage  of

$70,000 over his mother’s property.  Mr Boulton informed me that that property is located at Adams Road, Greendale, and that his mother’s full name is Coral Wallace Boulton.  He indicated that the mortgage is not registered against the property.

[13]     Finally,  it  is  necessary  to  address  the  fact  that  the  compliance  with  the directions of French J is incomplete to the extent that Mr Boulton has not disclosed with particularity the whereabouts of the $80,922.   Nor has he provided bank statements.   He indicated that bank statements had been requested and that they should be available by the end of the week and that once he has access to those statements he will be able to advise with more particularity how the payment in question was used.

[14]     In  all  the  circumstances  I  accept  that  it  is  appropriate  for  the  deadline imposed by French J to be extended to next Friday, 24 February 2012.  Mr Boulton

will have to file a further affidavit exhibiting the bank statements and explaining what happened to the money and its whereabouts.  Costs are reserved and leave is reserved to either party to apply further.

Solicitors:

Copy to Appellant

Russell Moon & Fail, P O Box 22, Ashburton,

G M Brodie, Christchurch,  [email protected]