IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-007912 [2013] NZHC 2339
BETWEEN SHOYE VENTURE LIMITED
Plaintiff
AND
DONALD GORDON WILSON
Defendant
AND
MANUKAU GOLF CLUB INCORPORATED
Third Party
| Hearing: | 6 September 2013 |
Counsel: | No Appearance of or for the Plaintiff A E Hansen for the Defendant No Appearance of or for the Third Party |
Judgment: | 6 September 2013 |
JUDGMENT OF DUFFY J
Solicitors: Heimsath Alexander, Auckland
SHOYE VENTURE LTD v WILSON and ANOR [2013] NZHC 2339 [6 September 2013]
[1] This proceeding, which was to be heard by way of formal proof, and Manukau Golf Club Inc v Shoye Venture Ltd (CIV-2010-404-4422), which was to be tried by a Judge alone, were set down to be heard together in mid 2012. However, the Judge alone trial ran overtime, and so the formal proof of this proceeding was adjourned to a date to be fixed by the Registrar.
[2] When I delivered judgment in the related proceeding, Shoye Venture Ltd v Wilson [2013] NZHC 658, I found that the arrangements in place between Shoye Venture Ltd (Shoye Venture) and Manukau Golf Club Ltd (Manukau) for a gambling operation were illegal. After that judgment was released, Shoye Venture indicated its intention in this proceeding to pursue judgment by way of formal proof against the defendant, Donald Wilson. Mr Wilson now seeks leave to defend the claim against him out of time.
Background
[3] Mr Wilson provided a personal guarantee on 10 September 2007, purporting to ensure the due performance of a management agreement in relation to a gambling operation between Shoye Venture and Manukau, which was operated from the venue known as the Trophy Bar. Mr Wilson says that he derived no benefit from the guarantee and had no actual involvement in the operation. He provided the guarantee at Manukau’s request.
[4] The guarantee included the obligation to purchase the business of the Trophy Bar for the sum of $300,000 plus GST in the event of a breach of the management agreement. The guarantor also indemnified Shoye Venture from any loss or damage that it may suffer as a result of breach of the management agreement.
[5] In November 2009, Shoye Venture commenced proceedings against Mr Wilson by way of a summary judgment application. At that time, Mr Wilson opposed the summary judgment application. The proceedings continued. In May 2012, Mr Wilson abandoned his opposition because he believed that the
gambling arrangements were legal. It was then that the Court directed that this proceeding be set down for a formal proof hearing.
[6] On 28 March 2013, I delivered the judgment finding that the gambling arrangements between Shoye Venture and Manukau were illegal. Despite this, Shoye Venture continues to seek judgment by way of formal proof against Mr Wilson under the guarantee.
Submissions
[7] On the basis of my illegality findings, Mr Wilson now believes that he should not be held liable under his personal guarantee because, in essence, Shoye Venture is seeking to recover financial losses caused…
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- Case
- [2013] NZHC 2339
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant, Wilson, should be granted leave to file his defence out of time, under Rule 15.9(3) of the High Court Rules. The court considered the factors relevant to determining whether there would be a miscarriage of justice if judgment were entered by default, including whether Wilson had a substantial ground of defence, whether the delay was reasonably explained, and whether Shoye Venture would suffer irreparable injury if the judgment were set aside.
The court concluded that Wilson had a substantial ground of defence based on the illegality of the arrangements, and that the delay in filing the defence was reasonably explained by Wilson's initial belief that the arrangements were legal. The court further found that Shoye Venture would not suffer irreparable injury, and that the future costs involved would be minimal as the issue of illegality could be determined in a short hearing. Therefore, the application for leave to file a defence out of time was granted. Wilson was directed to file and serve his statement of defence by a specified date, after which the matter would proceed as an ordinary proceeding warranting a defended hearing. Costs were reserved for later determination.
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