Turner and Waverley Limited v Edmonds
[2012] NZHC 288
•27 February 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-002256 [2012] NZHC 288
BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDKEN EDMONDS, SUE EDMONDS AND MARK EDMONDS
First Defendants
ANDSCOMARG INVESTMENTS PTY LIMITED
Second Defendants
ANDTRIED HARD PTY LIMITED Third Defendant
Contd…/…
Hearing: 9 February 2012
Appearances: G P Blanchard for Plaintiff
No appearance for the Defendants
Judgment: 27 February 2012
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 27 February 2012 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
TURNER AND WAVERLEY LIMITED V EDMONDS & ORS HC AK CIV-2010-404-002256 [27 February
2012]
ANDBRETT SHEATHER, MARC WILSON AND ROBIN WALKER
Fourth Defendants
ANDSCOTT WILIAM EDMONDS AND MARGARET ALISON EDMONDS Fifth Defendants
ANDROBERT VINCENT HUGHES Sixth Defendant
CIV-2010-404-004372
AND BETWEEN TURNER AND WAVERLEY LIMITED Plaintiff
ANDBRUCE GORDON AND CHRISTINE GORDON
First Defendants
ANDRJ & KE WILLIAMSON PTY LIMITED Second Defendants
ANDREDFAST NOMINEES PTY LIMITED Third Defendant
ANDROBERT JAMES WILLIAMSON AND KATHRYN ELIZABETH WILLIAMSON Fourth Defendants
ANDPETER KRASK Fifth Defendant
Distribution:
CMS Legal (C Smith), Auckland – Email [email protected]
Phillips Legal, Auckland – Email [email protected]
Barter & Co., Auckland – Email [email protected]
W McCartney, Auckland – Email [email protected]
G Blanchard, Auckland – Email [email protected]
[1] The plaintiff, Turner and Waverley Limited (“TWL”), seeks judgment by way of formal proof in respect of its claims against:
(a) Tried Hard Pty Limited, the third defendant in proceedings CIV 2010-
404-2256;
(b)Messrs Wilson and Walker, the second and third named fourth defendants in proceedings CIV 2010-404-2256;
(c) Mr Hughes, the sixth defendant in proceedings CIV 2010-404-2256;
(d)RJ and KE Williamson Pty Limited, the second defendant in proceedings CIV 2010-404-4372; and
(e) Mr and Mrs Williamson, the fourth defendants in proceedings
CIV 2010-404-4372.
Background
[2] TWL was the developer of an apartment complex known as “Bianco Off
Queen”. The complex was in two tower blocks, situated at 18-20 Turner Street and
17-19 Waverley Street in Auckland’s CBD. In 2006 and 2007, TWL sold various apartments in the development off the plans to purchasers both in New Zealand and overseas.
[3] The defendants in this formal proof hearing either had their registered offices in
Australia or resided in that country.
[4] Tried Hard Pty Limited agreed to buy unit 5C/8 for $461,000 pursuant to an agreement for sale and purchase dated 8 May 2007. Mr Hughes was a director of the company and a signatory to the agreement for sale and purchase.
[5] Messrs Wilson and Walker, together with a Mr Sheather, agreed to buy
apartment 6F/2 for $542,000 pursuant to an agreement for sale and purchase dated
8 June 2007.
[6] RJ and KE Williamson Pty Limited agreed to buy apartment 6A/2 for $517,000 pursuant to an agreement for sale and purchase dated 13 March 2007. Mr and Mrs Williamson were directors of the company, and signatories to the agreement for sale and purchase.
[7] TWL carried out the development of the apartments in accordance with the agreements for sale and purchase throughout 2007 and 2008. It then called on the defendants to settle. All failed to do so. TWL considered that the defendants had repudiated the agreements for sale and purchase. It cancelled the same, and now seeks to recover damages, interest and costs against each of the above parties. None of them have filed a statement of defence to TWL’s statement of claim. Accordingly, it seeks to proceed by way of formal proof.
Service
[8] As I have noted elsewhere,[1] the High Court Rules do not provide discretely for hearings by way of formal proof.
[1] Chen v Zhong HC Auckland CIV 2010-404-001995, 14 November 2011 at [37].
[9] Unless a defendant has filed an appearance under r 5.49, a plaintiff wishing to seek a judgment by default must, of course, prove that the defendants have been served.[2]
[2] High Court Rules 2008, r 15.4.
[10] TWL’s statement of claim in proceedings CIV 2010-404-2256 was dated
15 April 2010. It was filed in Court on that day.
[11] Service was effected on Tried Hard Pty Limited on 13 May 2010. An affidavit of service has been filed in that regard. For some unexplained reason, the affidavit of service asserts that the statement of claim and notice of proceeding was dated 6 April
2010. That is not correct. The documents are dated 15 April 2010. There is, however,
no difficulty, because copies of the documents served are annexed to the affidavit, and it is clear that the notice of proceeding and statement of claim were, in fact, dated
15 April 2010.
[12] Affidavits have been filed confirming that Mr Wilson was served on 31 May
2010, and that Mr Hughes was served on 18 May 2011.
[13] TWL’s statement of claim in proceedings CIV 2010-404-4372 was dated 6 July
2010.
[14] RJ and KE Williamson Pty Limited was served on 6 July 2011. Mr and Mrs Williamson were also served on that day. The documents served on Mr and Mrs Williamson were served care of the company. TWL had applied for substituted service on Mr and Mrs Williamson, and an order to that effect was made by Associate Judge Bell on 22 June 2011.
[15] I am satisfied that Tried Hard Pty Limited, Mr Hughes, Mr Wilson, RJ and KE Williamson Pty Limited and Mr and Mrs Williamson were served.
Proceedings CIV 2010-404-2256 — Mr Walker’s Position
[16] Tried Hard Pty Limited and Mr Wilson filed an appearance protesting the jurisdiction of the Court to hear and determine the proceeding under r 5.49. That protest was dated 16 June 2010.
[17] Mr Walker was not named as a defendant in the original statement of claim filed in proceedings CIV 2010-404-2256. On 22 June 2010, TWL filed an interlocutory application seeking to join Mr Walker as a defendant in the proceeding. An order joining Mr Walker was made on 23 June 2010 by Associate Judge Doogue.
[18] TWL also applied to set aside the appearance protesting jurisdiction filed by Tried Hard Pty Limited and Mr Wilson and on 3 August 2010, a notice of opposition was filed by Tried Hard Pty Limited and Messrs Wilson and Walker. The notice of opposition was signed by a Mr Phillips as counsel. The notice of opposition refers to
an affidavit being filed by Mr Walker. There is, however, no affidavit from Mr Walker on the Court file.
[19] An affidavit was filed by a process server in Australia advising that he had attempted to serve Mr Walker on 2 August 2010, but that that attempt failed.
[20] A memorandum was filed on 9 September 2010 by a Mr Barter, of the firm of
Barter & Co, solicitors in Albany, on behalf of all defendants in proceedings CIV 2010-
404-2256 other than Mr Sheather.
[21] There is, however, nothing to suggest that the notice of proceedings or the statement of claim was served on Mr Walker through either Mr Phillips’ firm or Mr Barter’s firm, or that either firm was authorised to accept service.
[22] In the event, the interlocutory application to set aside the plaintiff’s protest to jurisdiction was heard by Associate Judge Bell on 26 August and 20 September 2010. Appearances by Messrs Barter and Phillips are recorded for all defendants, other than Mr Sheather. Associate Judge Bell set aside the defendants’ appearances protesting jurisdiction under r 5.49(5). He did not, however, go on to make timetabling orders under rr 5.49(8) and (9) requiring the filing of statements of defence.
[23] Mr Blanchard, acting on behalf of TWL, made available to me a letter from Phillips’ Solicitors enclosing a copy of the notice of opposition and recording that it was filed on behalf of, inter alia, Mr Walker. The letter does not however confirm that the firm is authorised to accept service on behalf of Mr Walker. Nor does it acknowledge service of the statement of claim. Mr Blanchard also made available to me a copy of a memorandum he filed with the Court on 21 June 2011 for the purposes of a case management conference which inter alia, recorded the plaintiff ’s understanding that either Mr Barter or Mr Phillips acted for all of the defendants in the proceedings, except Mr Sheather, Mr Hughes and Mr and Mrs Williamson. The memorandum did record that it was uncertain from the documents filed, which of Mr Barter or Mr Phillips was the instructing solicitor for each of the defendants. A schedule was attached outlining the position of each defendant as TWL understood it. Express confirmation or clarification was requested. Notably, that schedule did not
refer to Mr Walker. There is no record that the defendants formally responded to this memorandum, although in a minute issued on 22 June 2011, Associate Judge Bell recorded that Mr Barter was the solicitor on the record for all defendants who remained actively involved in the proceeding. He noted, however, that this did not include the defendants against whom the plaintiff would apply for formal proof, and he listed those defendants. One of the defendants listed was Mr Walker. He recorded that Mr Phillips had been the solicitor on the record for those defendants, but that he no longer had instructions from them. He granted Mr Phillips leave to withdraw. Associate Judge Bell then went on to order formal proof hearings against Tried Hard Pty Limited, Messrs Wilson, Walker and Hughes, RJ and KE Williamson Ltd, and Mr and Mrs Williamson.
[24] Notwithstanding the order made by Associate Judge Bell, there is nothing before me proving that Mr Walker has been served with a notice of proceeding and statement of claim. He has not been personally served. The attempt to serve him in Australia failed. There is nothing before me suggesting that he has nominated an address for service.
[25] Rule 6.8 provides for substituted service. However, TWL has not sought an order for substituted service on Mr Walker. Rule 6.8(b) provides that the Court can direct that a document be treated as served on a person on a specified date, “when steps have been taken for the purpose of bringing, or which have a tendency to bring, the document to the notice of the person on whom it is required to be served”. Rule 6.8(c) allows the Court to dispense with service, and give the party by whom the document is required to be served leave to proceed as if the document had been served. TWL has not made an application in either regard.
[26] In the circumstances, I am not persuaded that Mr Walker has been served. Accordingly, I am not prepared to give judgment against him by way of formal proof.
Pleadings — Supporting Affidavit
[27] I now turn to consider the position of the other defendants on whom service has been effected.
[28] Mr Blanchard sought and was granted leave by me to file amended statements of claim. Those amended pleadings updated the position. A Mr Worthington, who is the general manager of Norwich Properties Limited, has filed an affidavit annexing relevant documents and deposing as to the various matters alleged in the amended statements of claim. Norwich Management Limited is now responsible for the management of TWL.
Agreements for Sale and Purchase
[29] As I have noted above, each of the defendants the subject of this application signed agreements for sale and purchase with TWL.
[30] The agreements for sale and purchase were in common form. Inter alia, each agreement provided as follows:
(a) The purchase price was inclusive of the price for the unit, a carpark or parks, a locker or lockers and a furniture package.
(b)Where two or more parties were bound by a provision, then regardless of whether those parties were referred to individually or together, the provisions were to bind those parties jointly and each of them severally.
(c) It was conditional on TWL obtaining a minimal level of sales, being satisfied that the relevant authority and any other relevant persons would grant all necessary consents, a title identifier being issued for the unit by Land Information New Zealand, a certificate of practical completion being issued, and a code compliance certificate being issued. On or before completion, TWL was to subdivide the land in accordance with the unit title plan. It was also to complete the unit in a proper and workman-like manner, in accordance with the plans and specifications and the consent granted, and in accordance with all relevant statutory and regulatory bylaws and requirements. The agreement recorded that a number of these conditions were for the sole benefit of TWL and that
they could be waived by it.
(d) The deposit paid by the purchasers was to be held by TWL’s solicitors as
stakeholder, in a trust account, until settlement date.
(e) The purchaser was to pay the balance of the purchase price on the settlement date.
(f) The settlement date was to be the later of the tenth business day after the date that TWL’s solicitors provided the purchaser with a certificate of practical completion, or the tenth business day after the date that TWL’s solicitors advised the purchaser that the title identifier to the unit had been issued by Land Information New Zealand, or the tenth business day after the date that TWL’s solicitors provided to the purchaser the code compliance certificate issued pursuant to the Building Act 2004.
(g)The interest rate for late settlement was 14 per cent per annum on the unpaid portion of the purchase price.
(h)If the sale was not settled on the settlement date, either party could serve a settlement notice.
(i)Upon service of a settlement notice by TWL, the purchaser had to settle within 12 business days of service.
(j)If the purchaser did not comply with the settlement notice, then TWL, without prejudice to any other rights or remedies available to it at law or in equity could:
— sue the purchaser for specific performance; or
—cancel the agreement, and pursue either or both of the following remedies, namely forfeit and retain the deposit together with any interest earned on it and/or sue the purchaser for damages.
(k)Damages claimable by TWL could include all damages claimed by it at common law and equity, and could also include, but not be limited to, any loss incurred by TWL within 18 months from the date by which the purchaser was required to settle in compliance with the settlement notice. That loss could include interest on the unpaid portion of the purchase price at the interest rate for late settlement from the settlement date to the settlement of the resale, all costs and expenses incurred on any resale or attempted resale, and all outgoings, body corporate levies, and maintenance expenses in respect of the unit from the settlement date to the settlement of any resale.
(l)The purchaser was to pay TWL’s solicitor’s costs arising from any default or breach of any term of the agreement by the purchaser.
(m)Anyone who executed the agreement for sale and purchase as agent, or on behalf of a company or a company to be formed, or as a director of a company, was at all times to remain personally liable for all obligations of the purchaser under the agreement.
Satisfaction of Conditions
[31] Mr Worthington has deposed that all conditions were satisfied, that title identifiers to the relevant units were issued by Land Information New Zealand Limited on 18 November 2008, that certificates of practical completion were issued for one tower of units on 1 December 2008, and for the other tower on 23 January 2009, and that the code compliance certificate for one tower became available on 10 December
2008, and for the other tower, on 30 January 2009.
Tried Hard Pty Limited/Mr Hughes
[32] As noted above, Tried Hard Pty Limited agreed to buy unit 5C/8 for $461,000 pursuant to an agreement for sale and purchase dated 8 May 2007. Mr Hughes was a director of the company. He signed the agreement for sale and purchase. Pursuant to
the sale and purchase agreement, he was personally liable for all obligations of the company as purchaser.
[33] The deposit payable under the agreement for sale and purchase was $44,200. It was paid on 30 April 2007.
[34] The sale and purchase agreement fell due for settlement on 10 December 2009. Tried Hard Pty Limited and Mr Hughes failed to settle on that date. On 14 December
2009, TWL served a settlement notice. That settlement notice expired on 10 February
2010. The purchasers failed to comply with the notice. On 8 August 2011, TWL gave notice cancelling the agreement.
[35] TWL were successful in reselling the apartment pursuant to an agreement for sale and purchase dated 29 May 2011. The resale was settled on 7 September 2011. The purchase price under the resale agreement was $375,000.
[36] The resale was contracted within 18 months of the date by which Tried Hard Pty Limited and Mr Hughes were required to settle pursuant to the settlement notice. In accordance with the agreement, TWL seeks interest, its costs and expenses and its outgoings.
[37] I deal with interest below.
[38] TWL was required to meet a number of expenses. Under the resale agreement, it was required to guarantee rental and body corporate levies for two years. Mr Worthington has deposed that TWL needed to guarantee the rental and body corporate levies in order to induce the purchase to enter into the resale agreement. The amount paid under the guarantee for the rental was $34,125, and for body corporate levies, $15,138. Further, TWL had to agree to reimburse the purchaser for legal fees and GST registration fees. As a result, it was required to pay $2,850 towards the purchaser’s legal fees, and $236 for GST registration fees. Again, Mr Worthington has deposed that TWL had to pay these sums to secure the resale agreement. It also had to pay real estate agent’s commission of $18,750, and marketing costs totalling
$8,500. It found it very difficult to sell the units in New Zealand in the economic
climate at the time. The resale was achieved as a result of a marketing trip made by TWL to Singapore. Total marketing costs of $60,000 were incurred. A proportion of those costs — $8,500 — has been allocated to the resale of the unit initially purchased by Tried Hard Pty Limited and Mr Hughes.
[39] TWL’s legal costs on the resale were $2,000.
[40] Deducting these various sums, the net proceeds of resale received by TWL were
$293,401.
[41] TWL was able to rent out the unit during the period that Tried Hard Pty Limited and Mr Hughes were in default. It received a net income of $33,437 during that period.
[42] It follows that TWL’s loss can be calculated as follows:
Purchase price with Tried Hard Pty Limited/Hughes $461,000
Less deposit $ 44,200
Subtotal $416,800
Less net amount received on resale $293,401
Less net income received from renting out unit $ 33,437
TWL’s loss $ 89,962
[43] TWL seeks default interest at the rate provided in the agreement — 14 per cent per annum — from the settlement date, 9 December 2009, until the date of settlement of the resale, 7 September 2011, a period of 637 days. Interest on the unpaid portion of the purchase price — namely $416,800 — accrued at the rate of $159.87 per day. The total default interest sought by TWL is accordingly $101,836.
[44] TWL also claims interest pursuant to s 87 of the Judicature Act 1908 at five per cent on the damages payable to it — $89,962. This equates to $12.32 per day. TWL seeks to recover interest at this rate from 7 September 2011.
[45] TWL also seeks costs on a 2B basis. It has calculated those costs at $5,920. It
[46] I am satisfied that TWL is entitled to judgment against Tried Hard Pty Limited and Mr Hughes. Accordingly, I give judgment against Tried Hard Pty Limited and Mr Hughes on a joint and several basis as follows:
Damages for TWL’s loss $ 89,962
Interest from 9 December 2009 to 7 September 2011 $101,836
Interest on the sum of $89,962 at the rate of five per cent per annum from 8 September 2011 until the date of this judgment
$ 2,120
Costs $ 5,920
Disbursements (filing fee) $ 1,100
Total $200,938
Mr Wilson
[47] As noted above, Mr Wilson, Mr Walker and Mr Sheather agreed to buy apartment 6F/2 for $542,000 pursuant to an agreement for sale and purchase dated
8 June 2007. The deposit payable under the agreement was $52,300. This was paid on
16 March 2007. Half was paid by Messrs Wilson and Walker, and the other half by
Mr Sheather.
[48] The settlement date under the agreement for sale and purchase was
11 December 2009. Messrs Wilson, Walker and Sheather failed to settle on that date.
On 14 December 2009, TWL’s solicitors served a settlement notice. It expired on
10 February 2010. None of them, Messrs Wilson, Walker or Sheather, took any steps to comply with the settlement notice. On 7 February 2012, TWL gave notice cancelling the agreement for sale and purchase.
[49] TWL have reached a settlement with Mr Sheather. Under the settlement deed, Mr Sheather agreed to forfeit his half-share of the deposit, and to pay TWL a further sum of $60,000 by way of compensation for its losses. In return, TWL agreed to discontinue its claim against Mr Sheather, and not to continue further claims against him in relation to the agreement for sale and purchase. It discontinued its claim against
him, and it now claims only against Messrs Wilson and Walker. It seeks to recover its losses, less the amount of compensation it has received from Mr Sheather under the settlement deed.
[50] As I have already noted, I am not prepared to give judgment by way of formal proof against Mr Walker. I am, however, prepared to give judgment against Mr Wilson. He can of course, pursue Messrs Walker and Sheather if he wishes to do so.
[51] Allowing for payment of the deposit, the unpaid balance of the purchase price was $489,700. When the sum of $60,000 received by TWL from Mr Sheather is deducted, the amount by which TWL is out of pocket is reduced to $429,700.
[52] TWL has been unable to resell the apartment. It seeks damages for its losses based on its estimate of the net proceeds of sale it would have received if it had been able to sell the apartment for the amount of its current valuation.
[53] Mr Worthington has annexed a valuation to his affidavit. That valuation is from Seagar and Partners, who are registered valuers and property consultants. That firm assesses the value of apartment 6F/2 at $288,000.
[54] It seems to me not unreasonable to proceed on the basis of the registered valuation. Difficulty in ascertaining damages does not preclude the Court from making an award of damages. Rather, it must use its best endeavours to ascertain the damages reasonably incurred by the plaintiff. I accept TWL’s submission that using the registered valuation for that purpose is appropriate.
[55] TWL also claims its estimated costs of sale. They are estimated as follows:
Real estate agent’s commission $17,280
Marketing costs $ 5,000
Legal costs $ 2,000
[56] These sums are not unreasonable. Payment of those amounts would reduce the
[57] TWL was able to rent out the apartment during the period that Messrs Wilson, Walker and Sheather were in default. It received a net income of $41,075.
[58] The damages payable to TWL can be calculated as follows:
Unpaid balance of purchase price $429,700
Less anticipated resale $263,720
Less net income received from renting out unit $ 41,075
TWL’s loss $124,905
[59] TWL is entitled to default interest for late settlement at 14 per cent from the settlement date, 11 December 2009 until the date of cancellation, 7 February 2012. Mr Sheather paid the $60,000 settlement figure to TWL on 4 February 2011. There was a 420-day period from 11 December 2009 until that date. Interest accrued on the sum of $489,700 at the rate of $187.83 per day. The total interest accruing through to
4 February 2011 was $78,889. There was then a further 368-day period from
4 February 2011 until 7 February 2012, when interest accrued at the rate of $164.82 per day on the net amount then outstanding — $429,700. The total default interest over that period is $60,652. It follows that the total interest payable is $139,541.
[60] TWL also claims interest pursuant to s 87 of the Judicature Act 1908 at five per cent on its loss of $124,905 noted above. This equates to $17.11 per day. It seeks to recover interest at that rate from 8 February 2012 to the date of this judgment. It also seeks costs of $5,920, and a filing fee of $1,100.
[61] I am satisfied that TWL is entitled to judgment against Mr Wilson in these various sums. Accordingly, I give judgment against Mr Wilson as follows:
Damages for TWL’s loss $124,905
Interest from 11 December 2009 to 4 February 2011 $ 78,889
Interest from 5 February 2011 to 7 February 2012 $ 60,652
Interest at five per cent per annum from 8 February 2012 to the date of this judgment
$ 325
Costs $ 5,920
Disbursements (filing fee) $ 1,100
Total $271,791
RJ and KE Williamson Pty Limited — RJ and KE Williamson
[62] As noted above, RJ and KE Williamson agreed to buy apartment 6A/2 for
$517,000 pursuant to an agreement for sale and purchase dated 13 March 2007. Mr and Mrs Williamson were directors of the company. They were also signatories to the agreement for sale and purchase, and as a result, are personally liable for all obligations of the company as purchaser pursuant to the agreement for sale and purchase.
[63] The deposit payable under the agreement was $49,800. This was paid on
16 March 2007.
[64] The settlement date under the agreement was 11 December 2009. The company and Mr and Mrs Williamson failed to settle on that date. On 14 December 2009, TWL’s solicitors served a settlement notice. This notice expired unremedied on
10 December 2010, and on 7 February 2012, TWL gave notice cancelling the agreement for sale and purchase.
[65] Allowing for the payment of the deposit, the unpaid balance of the purchase price was $467,200.
[66] TWL has been unsuccessful in reselling the apartment. Again, it seeks damages for its loss based on its estimate of the net proceeds of sale it would have received if it had been able to sell the apartment for the amount of its current valuation. For the reasons set out above in relation to the claim against Mr Wilson, I am satisfied that this method of calculating loss is appropriate.
[67] The current market value of the apartment is $258,000. If TWL were to sell the apartment for this amount, it would be required to meet the following expenses:
Real estate agent’s commission $15,480
Marketing costs $ 5,000
Legal costs $ 2,000
These sums are not unreasonable. Payment of these amounts would reduce the net proceeds of any putative resale received by TWL to $235,520.
[68] TWL was able to rent out the apartment during the period that the purchasers were in default. As a result, it received a net income of $32,830.
[69] It follows that TWL’s loss can be calculated as follows:
Unpaid balance of purchase price $467,200
Less estimated proceeds of resale $235,520
Less net income received from renting out the apartment $ 32,830
TWL’s loss $198,850
[70] In addition, TWL seeks default interest for late settlement of 14 per cent per annum from 11 December 2009 until the date of cancellation of the agreement for sale and purchase, 7 February 2012. This was a 788-day period. Interest accrued on the sum of $467,200 at the rate of $179.20 per day. The total default interest therefore amounts to $141,210.
[71] In addition, TWL seeks interest pursuant to s 87 of the Judicature Act 1908 at five per cent per annum on its loss — $198,850 — from 8 February 2012 to the date of this judgment. This equates to $27.24 per day. It also seeks scale costs of $5,920 and a filing fee of $1,100.
[72] I am satisfied that TWL is entitled to judgment against RJ and KE Williamson/Mr and Mrs Williamson in the above sums. Accordingly, I give judgment against RJ and KE Williamson and Mr and Mrs Williamson on a joint and several basis as follows:
Damages for TWL’s loss $198,850
Interest from 9 December 2009 to 7 February 2012 $141,210
Interest from 8 February 2012 to the date of this judgment $ 518
Costs $ 5,920
Disbursements (filing fee) $ 1,100
Total $347,598
Wylie J
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