Wentzel v MacDonald

[2015] NZHC 926

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000297 [2015] NZHC 926

UNDER	Part 12 of the High Court Rules
IN THE MATTER OF	an application for summary judgment
BETWEEN	ALLAN GRANT WENTZEL Plaintiff
AND	COLIN JAMES MACDONALD Defendant

Hearing:	5 May 2015
Appearances:	D Wiseman for Plaintiff Defendant in Person
Judgment:	5 May 2015

ORAL JUDGMENT OF VENNING J

Solicitors:           Simpson Grierson, Auckland

Copy to:            Defendant

WENTZEL v MACDONALD [2015] NZHC 926 [5 May 2015]

[1]      This is an application for summary judgment.   The plaintiff Allan Grant Wentzel, seeks judgment against Colin James MacDonald for $360,000 together with interest.

[2]      Mr Wentzel  and Mr MacDonald  were associates  and  friends,  initially in London.   In the course of that relationship Mr Wentzel advanced moneys to Mr MacDonald.  He claims that he made four specific advances on 4 February 2010, 26

March 2010, 25 June 2010 and 28 July 2010, totalling $360,000.  Mr Wentzel notes that at the time the advances were made there was no discussion or agreement as to repayment dates or payment of interest but he understood the loans would be repaid at some time.

[3]      Mr MacDonald has not repaid the $360,000.   In July 2014 Mr Wentzel instructed his solicitors who made formal demand of Mr MacDonald for repayment of the $360,000 by letter of 2 July 2014.  Mr MacDonald did not repay the money demanded.  This application for summary judgment followed.

[4]      Mr  MacDonald  has  filed  a  notice  of  opposition  to  the  application  for summary judgment.   He raises two points in opposition, firstly that there was no agreement as to repayment and secondly, there was no agreement that interest would be payable.  It is apparent from the correspondence between the parties annexed to the affidavits and indeed from Mr MacDonald’s own affidavit and his submissions to the Court that he acknowledges $360,000 was advanced by Mr Wentzel to him.  His position is that there was no agreement as to when the money would be repaid.  He intends to repay it but at a time when he is in a financial position to repay it.  He says that that was the understanding between the parties.

[5]      In his submissions to the Court Mr MacDonald referred to an earlier advance in yen in 2007 which was in fact repaid when he decided to repay it.

[6]      The short answer to Mr MacDonald’s opposition to repayment is that the law is settled.  If a contract of loan or an arrangement by which moneys are advanced from party A to party B is silent about repayment then the lender or party A’s right

to repayment arises at the time the money is advanced.1   If a demand is required to trigger the obligation to repay then in this case such a demand was made on 2 July

2014 in any event.

[7]      The evidence before the Court satisfies it that the $360,000 was advanced by Mr Wentzel to Mr MacDonald.  Mr Wentzel through his solicitors has made demand for repayment  of that  money.    Mr MacDonald  has  not  repaid  the money.    Mr MacDonald has no reasonably arguable defence to the application for summary judgment for the $360,000 advance.

[8]      As  to  the  issue  of  interest,  Mr  MacDonald  is  correct  that  there  was  no agreement  as  to  interest.    Interest  is  sought  pursuant  to  the  provisions  in  the Judicature Act 1908.  Interest is at the discretion of the Court.  In that regard I note that  in  the  letter  of  demand  of  2  July  2014  the  plaintiff’s  solicitors  put  Mr MacDonald on notice that interest would be sought if it was necessary to issue proceedings.  The letter recorded that if payment was not made or arrangements not

made:

[i]t is likely that we will be instructed to issue proceedings against you.  If that is the case, interest and court costs will also be sought.

[9]      In the circumstances and in the discretion of the Court I consider interest should apply not from the date of the demand itself but from the date of the issue of these proceedings.

Result

[10]     The  plaintiff  is  to  have  judgment  against  the  defendant  in  the  sum  of

$360,000, together with interest on that sum at the rate of five per cent per annum being the rate prescribed by the Judicature Act from the date of issue of these proceedings, 19 February 2015, to today’s date.  In addition the plaintiff is entitled to costs  to  scale  on  a  2B  basis.    That  is  $7,960  together  with  disbursements  of

$1,480.50.

Venning J

1      DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576.