Thompson v Bradley
[2016] NZHC 922
•6 May 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2015-441-093 [2016] NZHC 922
BETWEEN SHELLEY MARIE THOMPSON AND
RANGITAUIRA WAYNE DAVIS Plaintiffs
AND
DONALD BRADLEY AND NAPIER INDEPENDENT TRUSTEES LIMITED Defendants
Hearing: 28 April 2016 Counsel:
E M Bate for the Plaintiffs
P N Ross for the DefendantsJudgment:
6 May 2016
JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] This is an application by the plaintiffs for summary judgment for the sum of
$309,503.51 together with interest and costs.
[2] The plaintiffs are husband and wife, and Ms Thompson is the daughter of the defendant Mr Bradley. The defendants are the trustees of a trust known as the Don Bradley Family Trust (the Trust).
[3] The plaintiffs paid $317,503.51 to the defendants in December 2007. The transaction was recorded in a Deed of Acknowledgement of Debt dated 18 December
2007 (the Deed). The Deed recorded that the plaintiffs had advanced the money to the defendants to enable the defendants to purchase a property in Kokohu Road, Nuhaka (the property). The Deed provided that the amount advanced (the Principal Sum) was repayable by the defendants, in whole or in part, upon demand. The defendants were permitted to repay part or all of the Principal Sum in advance of any
demand being made, provided any lump sum repayment exceeded the sum of $100.
SHELLEY MARIE THOMPSON AND RANGITAUIRA WAYNE DAVIS v DONALD BRADLEY AND NAPIER INDEPENDENT TRUSTEES LIMITED [2016] NZHC 922 [6 May 2016]
[4] The Deed also included the following provisions:
3 Interest payable upon demand
3.1If the [plaintiffs make] demand, the [defendants] shall pay interest to the [plaintiffs] on the Principal Sum outstanding from time to time or on any part. The [plaintiffs] may give notice of demand to pay interest to the [defendants] on or before the 1st March in any year, otherwise the [defendants] shall not be liable to pay the [plaintiffs] any interest in respect of the 12 months ending 31st March in that year. The [defendants] shall pay the interest to the [plaintiffs] in one sum on the 31st March in any year in respect of the previous 12 months calculated at a rate not greater than 12% per annum, as is specified in the notice of demand.
…
6 Limitation of liability
6.1The liability under this Deed of the [defendants] shall not be an unlimited personal liability but shall be limited to the assets from time to time of the Don Bradley Family Trust (evidenced by Deed dated 18 December 2007 (“the Trust”)). It is agreed that any order execution or judgment obtained against the [defendants] in the capacity as trustee of the Trust shall only be capable of being satisfied out of assets from time to time of the Trust coming into the hands of the trustee in the proper administration of the Trust.
7The [defendants] shall and will whenever called upon so to do give and execute in favour of the [plaintiffs] a good and registerable mortgage (“the Mortgage”) over [the property]…to secure payment of the balance of the Principal Sum as shall then remain unpaid and interest thereon as hereinbefore provided.
8The [defendants] hereby charge [the property] with the payment of the Principal Sum as hereinbefore provided.
[5] The defendants made some payments to the plaintiffs, and at first these were applied by the plaintiffs in reduction of capital. In February 2014 the plaintiffs served a demand for interest under cl 3 of the Deed. Payments made by the defendants thereafter were applied to interest.
[6] The plaintiffs made demand for the Principal Sum in July 2014. That demand not having been met, the plaintiffs now apply for summary judgment for the balance of the Principal Sum and interest.
The notice of opposition
[7] The defendants have filed a notice of opposition to the summary judgment application, supported by an affidavit sworn by Mr Bradley. In their notice of opposition they acknowledge that the “arrangements” referred to by the plaintiffs appear to create an on-demand loan by the plaintiffs to the defendants. But they say that the Deed does not reflect the actual bargain reached by the parties. The defendants say that they are entitled to the equitable remedy of rectification.
[8] The defendants say that the actual arrangement reached was the settling of a family trust, in which the two plaintiffs and Mr Bradley would contribute equally to the funding of the property. Mr Bradley would live in the property. Ms Thompson would benefit as a beneficiary of the Trust. The structuring of the transaction as a loan was simply a means of avoiding liability for gift duty.1
[9] The defendants also say that the transaction was part of a wider family arrangement, and that in the circumstances it would be inequitable for the Court to grant relief by way of summary judgment.
[10] The defendants note that the defendants’ liability is limited by cl 6 of the
Deed to the assets of the Trust.
The evidence in support of the application
[11] In her affidavit Ms Thompson describes the family background leading up to the signing of the Deed. She says that Mr Bradley had been separated from Ms Thompson’s mother for some years, and it was only after Ms Thompson’s mother died in 2001 that Ms Thompson re-established a relationship with Mr Bradley. At about that time, Mr Bradley was looking to purchase his ex-wife’s half of a property they owned at Puketitiri, but Mr Bradley was unsuccessful.
[12] After a number of discussions with Mr Bradley, Ms Thompson says that the plaintiffs decided that they would lend him some money to buy a rural property.
1 At the time of the transaction, duty was payable under the Estate and Gift Duties Act 1968 on a gift where the total gifted in any one year exceeded the sum of $27,000. The duty was abolished by the Taxation (Tax Administration and Remedial Matters) Act 2011: Gift Duty Abolition.
Mr Bradley then found the property. The plaintiffs told him they would be able to get the money for him.
[13] The plaintiffs paid the deposit of $25,000, and Mr Bradley moved onto the property. The purchase was settled in 2007. Ms Thompson says that she and Mr Davis contributed two thirds of the purchase price. Mr Bradley paid the remainder.
[14] The plaintiffs’ financial position later changed, and they decided they wanted their money back. They approached Mr Bradley asking him to refinance and repay the loan. Ms Thompson says that Mr Bradley told her that he loved the property, and he was not prepared to move.
[15] Ms Thompson says that in 2012 or 2013 the plaintiffs received payments of
$100 to $300 per fortnight from the defendants. There was also one payment of
$6,000. The total amount received was $8,000. She says that she told Mr Bradley that these should be considered interest payments. He replied that the payments would “come off your share”. In circumstances where the plaintiffs had not made any formal demand for interest under the Deed, the plaintiffs were prepared to treat these payments as capital repayments.
[16] In February 2014 the plaintiffs did make a formal demand for interest under the Deed. Interest was claimed at 6 per cent per annum for the year ending
31 March 2014.
[17] Following that demand, the plaintiffs received payments totalling $7,400. These were applied by the plaintiffs towards interest.
[18] The plaintiffs called up the Principal Sum by letter of demand from their solicitors dated 14 July 2014. The letter recorded that Mr Bradley was aware that his daughter and Mr Davis had themselves borrowed money to assist the Trust with its purchase of the property, but they were now facing difficulties of their own, and were obliged to enforce repayment of the whole amount owing.
[19] The plaintiffs’ solicitors also called upon the defendants to execute in favour
of the plaintiffs a registerable mortgage in their favour, pursuant to cl 7 of the Deed.
[20] The defendants’ solicitors replied on 21 July 2014. In their letter, they acknowledged the plaintiffs’ rights to call up the debt and to demand interest. They advised that Mr Bradley was not then prepared to sign a memorandum of mortgage. They said that the second-named defendant was prepared to meet its contractual obligations, but decisions of the trustees had to be unanimous. They invited further discussion to see if a resolution could be found.
[21] The defendants’ solicitors wrote again to the plaintiffs’ solicitors on
9 March 2015. They noted that Mr Bradley was paying $300 per week to Ms Thompson “as agreed”. However the defendants were finding that paying even that amount was a struggle. They advised that the defendants had agreed to sell the property, and acquire another property closer to Wairoa. The property was expected to be listed for sale that week.
The evidence for the defendants
[22] Mr Bradley says that it was in fact Ms Thompson’s idea to form the Trust. He says that his daughter had the view that New Zealand rural property would be likely to gain considerable value, so if she and Mr Davis were involved in a purchase she could share in any capital gain. He says it was for that reason that, when he found the property, the Trust was established with Ms Thompson and himself as the beneficiaries.
[23] Mr Bradley says none of the parties intended that the loan would be called upon. The intention was that the property would pass to Ms Thompson after Mr Bradley died. He would contribute one third of the cost, while the plaintiffs would contribute one third each. He confirms the statement in the notice of opposition that the reason the documentation was prepared as a loan was because of a desire to avoid liability for gift duty.
[24] Mr Bradley accepts that the exchanges between the lawyers took place as set
out in Ms Thompson’s affidavit, although he says that he has “not understood all the
legal papers”. He contends that the arrangement was that no payments would be made to the plaintiffs while he remained alive or in possession of the property, and until 10 February 2014, the arrangement worked exactly in accordance with that understanding. It was only then that the plaintiffs sent him a letter invoking the Deed, making demand on him for payments of interest.
[25] Mr Bradley acknowledges that the loan “was part of the arrangement.” However he says that the loan was intended to be a “non-recourse loan”.
[26] Mr Bradley attached a copy of a handwritten letter from Ms Thompson dated
10 February 2014. In it, Ms Thompson said that she did not realise that she should have been charging interest all along. Her letter expressed the hope that when the property was sold Mr Bradley would consider paying the interest which had not been charged, as well as the Principal Sum. She said that Mr Bradley could not stay on the property, as she considered he could no longer work it to a satisfactory standard. The house on the property also needed some TLC which she considered Mr Bradley did not appear interested in providing. Ms Thompson asked Mr Bradley where he and his wife would like to live, and said that she would be in touch the following weekend.
[27] Mr Bradley contends that Ms Thompson’s real concerns relate to his new wife, and any claim she might have on the property. He says that the end result of the litigation will only be a reduction in the value of Ms Thompson’s eventual inheritance.
[28] On 3 February 2013 Ms Thompson wrote another letter to Mr Bradley. In it, she said:
Dad, … do you remember asking [Mr Davis] to give you two more years on the farm? It hasn’t been mentioned since but I certainly hope you remember it and are prepared to reassess the situation (your health, the farm’s workload and condition, as well as the condition of the house) when that two years is up. We made a commitment to you then that we would continue as we have done to date for the next two years but would dearly love something to be done at the end of it so that we can get our money back or at least work towards achieving that…
I’m the first to admit that things have changed for us since you first went onto the farm. Then we thought we would retire to NZ and live there, but we realise that isn’t likely to happen now. You must appreciate Dad that we could put the money that we have tied up in the farm to much better use…
The plaintiffs’ evidence in reply
[29] The plaintiffs have provided two affidavits in reply. The first, from Ms Thompson, includes a denial of the contention that the Deed was intended to be anything other than a loan agreement. She acknowledges the formation of the Trust and her position as a beneficiary, but says that those facts do not affect the plaintiffs’ rights under the Deed. She accepts that when the loan was advanced there was not then any intention to call it up, but she denies that that meant that the Deed could not later be called up in accordance with its terms.
[30] Ms Thompson says that the Deed was certainly not a means of avoiding liability for gift duty. She says there was never any proposal for the plaintiffs to gift money to the defendants as trustees. She notes that neither of the plaintiffs were trustees of the Trust, and neither would have any control over the trust assets.
[31] Ms Thompson accepts that it was likely that she would eventually be the sole beneficiary of the Trust, but says that does not mean the transaction was a gift, or that the plaintiffs were not entitled to require repayment of the debt.
[32] The other affidavit in reply is that of Mr Twigg, the solicitor who acted for the plaintiffs and the defendants in preparing the Deed. Mr Twigg also acted for the Trust in the conveyancing transactions involved in the purchase of the property.
[33] Mr Twigg was to some extent restricted in his ability to give evidence, as the defendants had declined to waive privilege in respect of instructions given by them. His evidence is accordingly limited to information available to him from the instructions given by the plaintiffs.
[34] Mr Twigg deposes that the Deed was structured to record the terms of a loan from the plaintiffs to the defendants, and that he witnessed the signatures of each signatory. He says that, in accordance with the usual practice at that time, the
principal was recorded as being repayable upon demand, with interest also only repayable on demand.
[35] Mr Twigg says that the instructions he received from the plaintiffs did not contemplate that there would be a need for them to make demand for the repayment of the loan or interest. There was no expectation that demand would be made for repayment of the loan, but it was intended that the Deed would preserve the interests of the plaintiffs in the Trust. Mr Twigg recalls that it was intended that Ms Thompson would eventually benefit from the Trust, as the likely surviving beneficiary.
Applications for summary judgment – general principles
[36] The application is made under r 12.2(1) of the High Court Rules. That rule provides:
12.2Judgment when there is no defence or when no cause of action can succeed
(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to [a cause of action in the statement of claim or to a particular part of any such cause of action].
[37] There is no dispute on the proper approach to be taken to such applications. In Krukziener v Hanover Finance Limited, the Court of Appeal said:2
The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR
373 (PC), at p 341; p 381. In the end the Court’s assessment of the evidence
is a matter of judgment. The Court may take a robust and realistic approach
2 Krukziener v Hanover Finance Limited [2008] NZCA 187.
where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ
84 (CA).
[38] The plaintiffs must comply with the requisite formalities required in summary judgment applications, and put forward sufficient evidence for the Court to be confident that there is no defence. It is then for the defendant to provide some evidential foundation for a bona fide defence, otherwise the plaintiff’s verified claim ought to be accepted unless it is patently wrong.3
Discussion and conclusions
[39] The defendants’ notice of opposition raises three grounds of opposition. First, the defendants say that the Deed did not record the actual agreement between the parties. They say that they are entitled to have the Deed rectified. For the defendants, Mr Ross submits that rectification is not a suitable issue for determination on a summary judgment application because the Court cannot properly address the defence without all of the evidence, including evidence given by the parties on cross-examination.
[40] Mr Ross acknowledged in the course of his submissions that it would be hard to avoid the conclusion that Mr Bradley would have to waive privilege in respect of the defendants’ relevant communications with their solicitors if the case went to trial. But he submitted that at summary judgment stage the defendants only have to show that rectification may be available to them: they do not have to assist the plaintiffs to make out their case. That may or may not be so. In the event, it is not necessary for me to determine the application to rely on any election by the defendants to decline to produce available evidence.
[41] Rectification is an equitable remedy which entitles a Court to alter the recorded terms of a written contract if those terms do not conform to the true agreement of the parties.4 The standard of proof is high – the evidence must be clear
and unambiguous before a Court will allow rectification.5
3 Doyles Trading Co Ltd v Westend Services Ltd [1989] 1 NZLR 38 (CA); Australian Guarantee
Corporation NZ Ltd v MacBeth [1992] 3 NZLR 54 (CA) at 548.
4 Farmers’ Mutual Insurance Ltd v QBE Insurance International Ltd [1993] 3 NZLR 305 (HC).
5 Westland Savings Bank v Hancock [1987] 2 NZLR 21 (HC), where Tipping J adopted a statement by Brightman LJ in Thomas Bates & Son Ltd v Wyndhams (Lingerie) Ltd [1981] 1 All
[42] The essence of rectification is that the Court must be satisfied that the parties had a continuing common intention in relation to a particular provision of their agreement, but the formal instrument which they signed does not conform to that common intention. It does not matter that the common intention may not itself have constituted a binding contract before the written agreement was signed.6
Rectification will not be available if the wording of the agreement accurately
represents the agreement made, even if the parties were mistaken as to the effect of the terms they had used.7
[43] The evidential onus is on the party seeking rectification.8
[44] I am satisfied in this case that the defendants have no seriously arguable case for rectification. First, the Deed is perfectly clear in its term. The transaction is described as an “advance”, and the plaintiffs and the defendants are respectively described as “the Lender” and “the Borrower”. The Deed could not have been clearer in its provisions for the Lender to demand repayment of the Principal Sum, and to demand interest if they saw fit.
[45] Second, if the advance was not intended to be repaid during Mr Bradley’s lifetime, it is not clear why that could not have been stated in the Deed. Third, the limitation of liability cl 6 appears to be entirely consistent with the transaction being an advance, under which the Trust might become liable to the plaintiffs to repay the Principal Sum if demanded.
[46] Fourth, I note that the signatures of the directors of the second-named defendant which appear on the Deed, are not those of Mr Bradley. Rectification would require that the document in question did not express the continuing common intention of all parties to it. In this case, there is nothing before me to suggest that
the trustees of the Trust did not consider that the Deed was precisely what it
ER 1077 (CA) at 1090, in which Brighman LJ said that the requisite standard is the normal civil standard, “but the evidential requirement needed to counteract the inherent probability that the written instrument truly represents the parties’ intention is very high.” That approach was followed by Hammond J in Butler v Countrywide Finance Ltd [1993] 3 NZLR 623, at 628.
6 Dundee Farm Ltd v Bambury Holdings Ltd [1978] 1 NZLR 647, at 651.
7 Farmers’ Mutual Insurance Ltd v QBE Insurance International Ltd, above n 4, at 314 and 315.
8 At 314.
purported to be, namely an advance by the plaintiffs to the defendants on the terms set out in the Deed.
[47] On the face of the document, then, any contention that the transaction was not in fact the loan it purported to be is simply not plausible.
[48] Mr Bradley acknowledges that the loan was “part of the arrangement”, but contends that it was intended to be a “non-recourse loan”. Mr Ross did not provide in his submissions any definition of that expression, but I note that Black’s Law Dictionary (10th ed) states that a non-recourse loan is a secured loan that allows “the lender to attach only the collateral, not the borrower’s personal assets, if the loan is not repaid”.9
[49] That may indeed be the effect of cl 6 of the Deed, which generally limits the defendants’ liability to the assets of the Trust (and provides that any liability can only be satisfied out of Trust assets), but if that is the effect of cl 6 there is obviously no need for rectification of the Deed.
[50] Mr Twigg’s affidavit is consistent with the plaintiffs’ contention that the transaction was the loan which the Deed purported to record. That is not changed by his evidence that in 2007 when the Deed was signed the plaintiffs did not contemplate that there would be any need to make demand for repayment of the loan or interest. Nor do I think Mr Twigg’s statement that “it was intended that [the Deed] would preserve the interests of the plaintiffs in the Trust” detracts from the status of the transaction as a loan. The plaintiffs’ entitlement under the Deed to call for a registerable mortgage over the property appears to have been directed to that very purpose – the property would be preserved as a Trust asset available for Trust beneficiaries as long as a mortgage in favour of the plaintiffs (or a caveat protecting their interest as mortgagee) was registered on the title and effectively prevented a sale without the plaintiffs’ consent.
[51] The defendants’ behaviour after the Deed was signed is also inconsistent with their present stance. If the Principal Sum was a contribution to the Trust, and not a
9 Black’s Law Dictionary (10th ed)
loan, and the intention was that no payments would be required, why did the defendants not immediately challenge the demands for interest and the demand for repayment of the Principal Sum? And why did they make the payments they made (including payments of interest, which could only be consistent with the money paid by the plaintiff having been a loan)? One would have expected that if the Principal Sum was not repayable, Mr Bradley would have immediately challenged the assertion that it was. Furthermore, the defendants’ solicitors acknowledged the plaintiffs’ rights to call up the debt and demand interest, in their letter of 21 July
2014. The statement in the 21 July 2014 letter that the second-named defendant was prepared to meet its contractual obligations, but that decisions of the trustees had to be unanimous, is a significant pointer to the absence of any continuing common intention (shared by all parties to the Deed) of the kind the defendants now allege.
[52] In the end, it appears to me that the parties quite clearly and deliberately structured the transaction as a loan from the plaintiffs to the defendants. In those circumstances there can be no question of rectification. There is no possibility of any mistake in the wording of the Deed which might have had the effect that it did not record the parties’ continuing common intention. In my view the rectification argument falls within that category of summary judgment defences described by the Court of Appeal in Krukziener, where “the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently
improbable”.10
[53] The defendants might conceivably have put their case on the basis that there was a collateral oral agreement between the parties that repayment of the Principal Sum would not be demanded in Mr Bradley’s lifetime. But no details of any such agreement have been put forward by the defendants, and the evidence does not support it. It is true that there have been periods where Mr Bradley has made interest payments, and the plaintiffs have apparently been prepared to defer forcing a sale of the property while he continued to do that, but I do not understand the defendants to contend that there was an agreement that those arrangements would continue until
Mr Bradley died. On the contrary, Mr Bradley’s solicitor advised on 9 March 2015
10 Krukziener v Hanover Finance Ltd, above n 1, at [26] citing Eng Mee Young v Letchumanan
[1980] AC 331; [1979] 3 WLR 373 (PC), at p341.
that the defendants had agreed to sell the property and acquire an alternative property closer to Wairoa. At that stage the solicitor’s understanding was that the property would be listed for sale within a week. The plaintiffs were prepared at that stage to consider an arrangement under which they would receive a substantial repayment of their loan from the proceeds of sale of the property, and leave the balance secured over the replacement property the defendants would buy. But it appears that those proposals were not taken up by the defendants; in any event the property was not sold and Mr Bradley and his wife are still living in it. The plaintiffs then issued this proceeding.
[54] The apparent absence of any clear pleading or evidence of any collateral oral agreement, the absence of any challenge by the defendants to the claims for interest and then the Principal Sum, and the acknowledgment of the entitlement to call up in the solicitors’ letter of 21 July 2014, are all inconsistent with the existence of any collateral oral agreement that no demand for payment would be made in Mr Bradley’s lifetime.
[55] I conclude that the plaintiffs were entitled to make demand for the Principal
Sum and interest thereon, and they have validly done so.
[56] The defendants refer to the limitation of liability provisions in cl 6 of the Deed, but they have not themselves put forward any evidence that the amount of the plaintiffs’ claim would or might exceed the value of the Trust’s assets. The only evidence before the Court on the extent of the Trust’s assets appears to be the evidence relating to the purchase price of the property in 2007, and a reference (in a letter dated 29 January 2015 from the plaintiffs’ solicitors to the defendants’ solicitors) to the defendants having received an appraisal for the property of
$390,000 to $420,000.
[57] I accept that the effect of cl 6 is that the defendants’ liability cannot exceed the assets of the Trust. Taking into account the January 2015 appraisal, and allowing for costs and commission on a sale of the property, it seems possible that the plaintiffs’ claim, with interest and costs, will exceed the net proceeds of a sale of the property, and will also exceed the Trust’s total assets (given the purpose for which
the Trust was created, and the extent of the borrowing from the plaintiffs, it seems unlikely that the Trust would have any significant assets other than the property). There is insufficient evidence to form a view on that. In those circumstances I think the appropriate course is to enter judgment for the plaintiffs for the Principal Sum and costs, and for the first year of interest which they have claimed. The plaintiffs’ remaining claims for interest will have to go forward to trial. If the defendants continue to rely on cl 6, evidence will have to be produced at trial of the extent of the Trust’s assets (of course if the plaintiffs elect to enforce this judgment against the property, the value of at least that Trust asset may be known before the plaintiffs’ remaining interest claims are heard).
[58] I do not consider this case is one of the relatively limited number of cases where, notwithstanding that a plaintiff has made out its case on a summary judgment application, the Court should exercise its discretion against the entry of summary judgment. In Sudfelt v UDC Finance Ltd Casey J observed that while the discretionary power to decline to enter summary judgment is unrestricted, there will be little scope for the exercise of the power where there is no suggestion of
injustice.11
[59] And in Berg v Anglo-Pacific International (1988) Ltd the Court of Appeal noted that “there is only the most limited scope for the discretion where injustice is not claimed.12
[60] I do not consider there would be any arguable case of injustice in this case if summary judgment were entered in favour of the plaintiffs. The defendants’ obligations under the Deed in the event of demand being made by the plaintiffs were perfectly clear, and the defendants have had ample time to refinance or sell the property in order to discharge those obligations.
[61] I am accordingly satisfied that the plaintiffs are entitled to summary judgment in the sum of $309,503.51 claimed, together with interest and costs as set out in
para [57] of this judgment.
11 Sudfelt v UDC Finance Ltd (1987) 1 PRNZ 205 (CA), at 209.
12 Berg v Anglo-Pacific International (1988) Ltd (1989) 1 PRNZ 713, at 717.
Judgment
[62] I enter judgment for the plaintiffs as follows:
(a) the sum of $309,503.51, being the balance of the Principal Sum owing under the Deed;
(b)interest on the balance of the Principal Sum for the financial year ended 31 March 2014, at the rate of six per cent per annum demanded under the Deed, in the sum of $18,570.21;
(c) costs on a 2B basis, plus disbursements as fixed by the registrar.
[63] Summary judgment on the plaintiffs’ claim for interest in respect of all periods after 31 March 2014 is refused. If the parties cannot agree, those interest claims will have to proceed to trial.
Associate Judge Smith
Solicitors:
Hansen Bate Limited, Hastings for the plaintiffs
Cathedral Lane Law, Napier for the defendants
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