The Town of Jupiter, Florida v Endeavour Capital Limited
[2021] NZHC 1110
•18 May 2021
IN THE HIGH COURT OF NEW ZEALAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-566
[2021] NZHC 1110
BETWEEN THE TOWN OF JUPITER, FLORIDA
Plaintiff
AND
ENDEAVOUR CAPITAL LIMITED
First Defendant
AND
NEVILLE JORDAN
Second Defendant
Hearing: 24 March 2021 Appearances:
R A Morris for the Plaintiff
No appearance for the First Defendant N Jordan – Second Defendant in person
Judgment:
18 May 2021
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 18 May 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 18 May 2021
THE TOWN OF JUPITER, FLORIDA v ENDEAVOUR CAPITAL LIMITED [2021] NZHC 1110 [18 May 2021]
[1] In this proceeding, the plaintiff, The Town of Jupiter, Florida (Jupiter), seeks judgment against the first defendant, Endeavour Capital Limited (Endeavour), under r 15.7 of the High Court Rules 2016.
[2]Rule 15.7 provides:
15.7 Liquidated demand
(1)If the relief claimed by the plaintiff is payment of a liquidated demand in money and the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, the plaintiff may seal judgment in accordance with this rule for a sum not exceeding the sum claimed in the statement of claim and—
(a)interest (if any) payable as of right calculated up to the date of judgment (if interest has been specifically claimed in the statement of claim); and
(b)costs and disbursements as fixed by the Registrar.
(2)If the plaintiff claims costs and disbursements, the plaintiff must file a memorandum setting out the amount claimed and how that amount is calculated, together with any submissions in support of the claim.
(3)A Judge or a Registrar may authorise the sealing of a judgment under subclause (1) if satisfied that the relief claimed by the plaintiff falls within this rule.
(4)A Registrar has the jurisdiction and powers of the court under these rules to fix costs and disbursements under subclause (1)(b).
(5)For the purpose of this rule and rule 15.9, liquidated demand means a sum that—
(a)has been quantified in, or can be precisely calculated on the basis of, a contract relied on by the plaintiff; or
(ab)is quantified in, or can be precisely calculated on the basis of, or by reference to, an enactment relied on by the plaintiff; or
(b)has been determined by agreement, mediation, arbitration, or previous litigation between the same parties; or
(c)is a reasonable price for goods supplied or services rendered (when no contract quantifies the price).
[3] The Registrar declined to enter judgment in favour of the plaintiff in early December 2020 and the Registrar’s decision in that regard was endorsed by Justice Doogue. In early December 2020, the time for the filing of a statement of defence (9 December 2020) had not expired. Jupiter nonetheless sought judgment in
reliance on what it said was an admission of liability, but the Registrar considered the evidence in that regard to be insufficient to justify the entry of judgment.
[4] With the time for the filing of a statement of defence having expired, and with no steps having been taken by either defendant, the matter came before Mallon J who issued a judgment on 4 February 2021.1
[5] Before Mallon J, judgment was sought on the basis that no defence had been filed. Her Honour, however, declined to enter judgment and referred the matter for a hearing before an Associate Judge, as she had two concerns. The first concern was that the affidavit of service in respect of the second defendant, Mr Neville Jordan, referred to him having received initial disclosure at the Wellington Regional Hospital. The second concern was that while Mr Jordan was sued as guarantor, plaintiff’s counsel properly brought to the Court’s attention that Mr Jordan had not signed the guarantee he was sued on.
[6] When the matter came before me on 24 March 2021, plaintiff’s counsel advised because of the Supreme Court’s decision in Brougham v Regan, Jupiter no longer sought judgment against Mr Jordan personally.2 On that basis, Jupiter’s claim against the second defendant was dismissed on 24 March 2021.
[7] However, Jupiter wishes to seek judgment against the first defendant, Endeavour.
[8] Because Mr Jordan is the sole director and shareholder of Endeavour, the plaintiff filed further evidence clarifying the circumstances in which Mr Jordan was served with the initial disclosure at hospital. The evidence is that Mr Jordan arranged with the process server to accept the papers at the reception area of the hospital and nothing about the circumstances indicated he was an inpatient. Subsequently, the same process server served Mr Jordan with further documents and arranged to meet at the railway station on Bunny Street, Wellington. Again, there was nothing in those
1 The Town of Jupiter, Florida v Endeavour Capital Ltd [2021] NZHC 95.
2 Brougham v Regan [2020] NZSC 118.
circumstances to indicate that Mr Jordan could not, on behalf of Endeavour, deal with this proceeding.
[9] The evidence satisfies me that the proceedings were properly served on Endeavour and that it has failed to file a defence. As to whether the claim is for a liquidated demand, I am satisfied (as was Mallon J) that the amount payable under the Settlement Agreement which forms the basis for the cause of action sued upon is a liquidated amount. I will refer below to how that amount has been calculated.
[10] Jupiter sues on a Settlement Agreement that it entered into with Endeavour on 12 August 2014. That Agreement required Endeavour to make time payments against an agreed indebtedness of USD 337,176. The payments were to be made over a number of years. Endeavour’s first default occurred in June 2015 and the final payment was made in April 2017. The evidence discloses solicitors for Jupiter following up on the missed payments and receiving numerous promises of payment which it seems came to nothing.
[11] Given the unequivocal terms of the Settlement Agreement and the promises of payment, I was satisfied when this matter was called before me that it was appropriate that judgment be entered in favour of Jupiter for liability for the amount properly payable under the Settlement Agreement. Judgment as to liability as against Endeavour was entered at the hearing on 24 March 2021.
[12] On 24 March 2021, the amount claimed had been calculated as USD 210,876.24 as at 31 December 2020. The statement of claim calculated the amount due as at 2 December 2019 as USD 206,550.52, including interest.
[13] Under the Settlement Agreement, interest is payable in respect of the outstanding balance.
[14] The final payment was due on 1 November 2016, described in the Settlement Agreement as the “Maturity Date”. Up until that point, the Settlement Agreement provides that the balance of the indebtedness payable by Endeavour “shall … accrue interest from the date of this Agreement at the rate of five percent (5%) per annum”.
[15]After the Maturity Date, the Settlement Agreement records that:
If the Final Payment is not timely made on or before the Maturity Date, interest shall accrue on the unpaid principal balance of the Reimbursement Indebtedness at the rate of ten percent (10%) per annum from the Maturity Date until paid.
[16] The calculation of the amount claimed is produced by way of a Loan Payment Schedule which shows the scheduled payments required under the Settlement Agreement, the interest accrued and the actual amounts paid.
[17] It was clear from the Schedule that interest had been compounded monthly. The Schedule shows the monthly calculation of interest with the opening balance of the following month increasing by the amount of the previous month’s interest.
[18]The Settlement Agreement contains the following clause:
11.10 Governing Law. This Agreement and all transactions contemplated by this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, except that Florida’s law of conflicts of law shall not be applied to make the law of any other state or nation control the interpretation or legal effect of this Agreement; provided however, that the laws of New Zealand shall control the legal effect of the Admissions of Claim and Statement of Claim and the manner and methods of their enforcement.
[19] Accordingly, the Settlement Agreement is to be construed in accordance with the laws of the State of Florida. Evidence as to whether the laws of Florida provide that contractual interest should be compounded on a monthly basis, was not before the Court on 24 March 2021.
[20] Having raised this issue with counsel, I gave the plaintiff the opportunity to produce expert evidence as to the laws of Florida, or to elect to accept simple interest.
[21] The proceeding was adjourned to allow counsel to take instructions and as a result a new schedule has been produced claiming simple interest. The amount for which judgment is claimed is now USD 178,899.39. I have no reason to doubt counsel’s calculation which now calculates the amount claimed to the date of filing the statement of claim.
[22] Accordingly, having already entered judgment for liability, I fix the question of judgment at USD 178,899.39.
Costs
[23] The Settlement Agreement contains a clause entitling Jupiter to recover its legal costs arising from a default on an indemnity basis. Rule 15.7(2) of the High Court Rules requires a plaintiff to show how such an amount claimed is calculated. The invoices produced do not have any detail of how the costs claimed are made up as they refer to a covering letter accompanying the invoice which contained that detail. Those letters are not produced.
[24] With this issue also being raised on 24 March 2021, further material has now been filed which satisfies me that the costs claimed are reasonable. Again, the relevant clause is not limited to recovering only litigation costs but all costs arising from default. Keeping in mind the first default was in 2015, the costs are reasonable.
[25] Accordingly, there is judgment for the plaintiff in respect of costs in the sum of NZD 43,592.50 (excluding GST), USD 4,850.00 and disbursements of NZD 4,132.32 (excluding GST).
[26]The draft order dated 13 April 2021 is approved for sealing.
[27] I apologise to counsel for the delay in getting this judgment completed as counsel’s memorandum was only just referred to me.
Associate Judge Lester
Solicitors:
Bell Gully, Auckland
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