Southland Building Society v Gallot HC Auckland CIV-2011-404-2116

[2011] NZHC 603

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-2116

BETWEEN  SOUTHLAND BUILDING SOCIETY LIMITED

Plaintiff

ANDWINSTON BRYCE GALLOT AND SYLVIA JOAN GALLOT Defendants

Hearing:         9 June 2011

Appearances: Ms Scott for plaintiff

Mr and Mrs Gallot in person

Judgment:      17 June 2011 at 4:00 PM

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

17.6.11 at 4 p.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Cavell Leitch Pringle & Boyle, P O Box 799, Christchurch – by email:  [email protected]

Copy:

Mr and Mrs Gallot- by email: [email protected]

SOUTHLAND BUILDING SOCIETY LIMITED V  GALLOT & Anor HC AK CIV-2011-404-2116 17 June

2011

[1]      This proceeding which a summary judgment was sought was adjourned by Associate Judge Christiansen on 30 May 2011 against the opposition of the plaintiff. The Judge directed that there be a short adjournment and that he had done that to provide Mrs Gallot with an opportunity to appear if that is what she wants to do and he further warned that  it was unlikely that the Court would permit any further adjournment of the summary judgment application.

[2]      The  summary  judgment  application  was  served  in  May.    No  notice  of opposition or affidavit in opposition has been filed.  Mrs Gallot has asked today for a further adjournment for some two months essentially so that property can be sold to meet the amount which she says is due under a deed of settlement entered into on 3

December 2010.

[3]      Ms Scott says that the amount actually owed by the defendants is now due and not the lesser amount which was fixed by the deed of settlement to which I have just made reference.  The amount of principal under that deed was $244,000 which contrasts with the sum in excess of $1,400,000 which the plaintiff is claiming.  Mrs Gallot has provided a helpful ‘background information” memorandum which sets out why she and her husband have not been able to meet the payments due under the settlement deed.  It’s obvious that serious attempts have been made to sell property and reference is made to the fact that there was a possibility (and I am not sure if that still is open) of the family assisting.

(Mrs Gallot addresses Court further)

[4]      The defendants have through Mrs Gallot told me that while they do not dispute the original debt, they consider that the bank has sold properties over which it had security (being a beach property and one other as I understand it) at a lesser figure than it ought to have obtained consistent with valuation reports which the defendants have obtained.

[5]      As I mentioned earlier no opposition or defence has been filed to this claim. Matters such as breach of the mortgagee’s duty under the Property Law Act could have been raised as a defence but have not.  I summarise that the proceeding at all

times has been undefended and is to this time.   Therefore in the absence of any defence the only real ground for a further adjournment is to give time to the Gallot’s to raise finance.  The Court has given one adjournment and warned there would be no more.  While I am not without sympathy for the Gallot’s on the grounds of the matters set out in the background information memorandum, it is a matter of balancing their rights against that of the plaintiff.  The plaintiff has brought summary judgment which seeks a fast track judgment of a kind which is just a fast-track judgment.    I can see no reason  why it should  now be deferred.   The entry of judgment today will not prevent further attempts being made to realise property which may be applied in reduction of the bank’s debt.  In other words there is still some time available to the defendants for that purpose.  It may not be a great deal of time but of course it is always open  to the parties to come to  an arrangement allowing more time to permit the defendants to pay off the debt.  For those reasons I do not consider that an adjournment would be just.  That application is dismissed. The plaintiff may now proceed on its summary judgment application on an undefended basis.

[6]      I  mentioned  a  deed  of  settlement  which  was  entered  into.    There  is  a deposition from the plaintiff that conditions of that deed included payments which were to be made in January of this year.   The plaintiff’s deposition which is unanswered discloses that those payments were not made.   The terms of the deed were alternatively that a settlement sum was to be arrived at if certain conditions were meet including payment of staged amounts, failing which the deed acknowledged indebtedness on the part of the debtors of the amount for which judgment is now sought.  Therefore in my view there is no defence available based upon the deed of settlement.  There will be judgment for the plaintiff in the sum of

$1,478,038.18, interest of $63,948.20.  Costs of $1,128 and $376 and the 2B figure mentioned in the memorandum of $5,640 and finally disbursements of $1,234.33.

(Mrs Gallot addresses Court further)

[7]      Mrs Gallot has pointed out that the dates in January for the part payments were extended to 23 March.   But as Mr Hayrick as pointed out no payment was

received by that date or at all.  This issue does not change the overall result.

J.P. Doogue

Associate Judge