Usar Napier Limited v Herbert

[2022] NZHC 90

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-8

[2022] NZHC 90

BETWEEN

USAR NAPIER LIMITED

Plaintiff

AND

MALCOLM ANDREW HERBERT

First Defendant

AND

ANTHONY JAMES HERBERT

Second Defendant

AND

ANTHONY JAMES HERBERT and

STEPHEN PETER LUNN, as trustees of the THACKERAY TRUST

Third Defendants

AND

ANTHONY JAMES HERBERT and

STEPHEN PETER LUNN, as trustees of the CHARLES STREET TRUST

Fourth Defendants

Hearing:	(Determined on the papers)
Counsel:	S M Lowery and J C Suyker for Plaintiff J K Mahuta-Coyle for Defendants
Judgment:	4 February 2022

JUDGMENT No. 2 OF ASSOCIATE JUDGE LESTER

USAR NAPIER LIMITED v HERBERT [2022] NZHC 90 [4 February 2022]

[1]        In a judgment dated 5 October 2021,1 I granted summary judgment in favour of the plaintiff for amounts payable under an agreement that settled its rights under an agreement to lease a building in Napier which the defendants were converting into    a hotel.

[2]        Under the settlement agreement, two  initial lump  sums were  payable with   a further   sum   payable   by   instalments.    The   final   instalment   was   due   on  5 December 2021. As the judgment was released on 5 October 2021, the instalments due on 5 November 2021 and 5 December 2021 had not fallen due for payment.

[3]        The judgment of 5 October 2021 entered judgment as to liability in respect of those outstanding payments.

[4]        On 14 December 2021, counsel for the plaintiff filed a memorandum seeking judgment as to quantum for the two outstanding instalments together with interest.

[5]No memorandum in response has been filed by the defendants.

[6]        Accordingly, as I am satisfied there is no issue as to the quantum of the outstanding instalments and no issue has been taken in that regard, there is judgment for the plaintiff against the first and second defendants in the sum of $55,555.54, being the two final monthly instalments of $27,777.77, together with interest of $4,332.19, giving a total judgment sum of $59,887.73.

[7]The call of this matter in the next Napier List is vacated.

Associate Judge Lester

Solicitors:

Anthony Harper, Christchurch

Copy to counsel: S M Lowery, Barrister, Auckland

Lawson Robinson, Napier
Copy to counsel: J K Mahuta-Coyle, Barrister, Wellington

1      USAR Napier Ltd v Herbert [2021] NZHC 2638.