Transport Repairs Limited v Wright

[2020] NZHC 2200

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-28

[2020] NZHC 2200

BETWEEN

TRANSPORT REPAIRS LIMITED

Plaintiff

AND

ANDREW JAMES WRIGHT

Defendant

Hearing:	27 August 2020
Counsel:	M J Foley (on agency instructions) for Plaintiff No appearance for Defendant
Judgment:	27 August 2020
Reissued:	28 August 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 27 August 2020 at 12.30pm (and re-issued under the Slip Rule on 28 August 2020 at 9.30am) pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

27 August 2020

TRANSPORT REPAIRS LIMITED v WRIGHT [2020] NZHC 2200 [27 August 2020]

[1]                  The plaintiff, Transport Repairs Ltd, seeks summary judgment against the defendant, Mr Wright, for the outstanding balance owed by him under a Term Loan Agreement entered into in late June/early July 2019 (the Agreement). The Agreement was signed by the defendant as “Borrower” on 1 July 2019.

[2]                  It seems the Agreement was intended to formalise a pre-existing debt owed by Mr Wright. The amount advanced pursuant to the Agreement is $99,890. The Agreement contains the following provision in Table D:

This Agreement relates to an existing debt owed by the Borrower to the Lender. The Lender has no obligation to advance any funds under this Agreement.

[3]                  Accordingly, the Agreement was intended to formalise an existing indebtedness, provide for a repayment date (15 September 2019), and the payment of interest. The interest commencement date is 1 April 2019 and while prior to the date of the Agreement, the indebtedness existed prior to the Agreement being entered into.

[4]                  The Agreement is on the Auckland District Law Society form and has been properly executed.

[5]                  The deponent for Transport Repairs Ltd states no payments have been made by Mr Wright since the Agreement was entered into, albeit a payment was made prior to the Agreement which reduced the indebtedness recorded in the Agreement to the sum now claimed of $99,890.

[6]                  Mr Wright was served with the proceedings on 10 July 2020 and has taken no steps.

[7]                  I am satisfied Transport Repairs Ltd has established that Mr Wright does not have a defence to the claim.

[8]                  The statement of claim properly pleads the claim for interest pursuant to the Interest on  Money  Claims Act  2016.  Transport  Repairs  Ltd’s  counsel  has  filed a memorandum updating the amount claimed as at the hearing date of 27 August 2020.

[9]                  The Agreement contains a solicitor/client costs clause. Accordingly, Transport Repairs Ltd seeks indemnity costs.

Judgment

[10]              The Court being satisfied that Mr Wright does not have a defence to Transport Repairs Ltd’s claim, there is judgment for Transport Repairs Ltd in the sum of $99,890. Further, there is judgment for interest at the higher rate under the Agreement from    1 April 2019 to 27 August 2020, being $99,890 x 18 per cent for 514 days at a daily rate of $49.26 totalling $25,320.

[11]              Solicitor/client costs are sought. Invoices produced to the Court and the amount claimed is reasonable. I have removed GST from the costs figures claimed as when a party entitled to indemnity costs is GST registered, the amount of costs awarded excludes GST, as they can claim the GST they have paid on their costs – see McGechan on Procedure HR 14.6.03(2)b.

[12]              The costs calculation is $6,921.64 (excluding GST) together with the agent’s costs for the appearance on 27 August 2020 in the sum of $350, giving a total of

$7,271.64, for which there is judgment.

Associate Judge Lester

Solicitors:
Cameron & Co, Christchurch

Copy to counsel:
K W Clay, Barrister, Christchurch