Westpac New Zealand Limited v Lynn Property Investments Limited

[2012] NZHC 178

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-294 [2012] NZHC 178

BETWEEN  WESTPAC NEW ZEALAND LIMITED Plaintiff

ANDLYNN PROPERTY INVESTMENTS LIMITED

First Defendant

ANDMICHELLE LOUISE LYNN AND NEIL ROBERT LYNN

Second Defendants

Hearing:         15 November 2011 and (on papers)

Appearances: Ms I Rosic senior counsel and S Pearson junior counsel for the plaintiff

Mr M D Branch for defendants

Judgment:      20 February 2012 at 2:00 PM

JUDGMENT TWO OF ASSOCIATE JUDGE J P DOOGUE

– RECALLING JUDGMENT GIVEN 29 NOVEMBER 2011

[and concerning interest and costs on judgment]

This judgment was delivered by me on

20 February 2012 at 12 p.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

MinterEllisonRuddWatts, P O Box 3798, Auckland - [email protected]

Harkness Henry, Private Bag 3077, Hamilton - [email protected]

WESTPAC NEW ZEALAND LIMITED V LYNN PROPERTY INVESTMENTS LIMITED & Ors HC TAU CIV-2011-470-294 20 February 2012

[1]      There are two issues that have emerged since I gave judgment in this matter. First, whether the omission of any reference to interest in the judgment was intentional or whether it was overlooked and secondly, whether the Court can now make an award of interest.   The second point concerns the terms of any interest judgment that ought to be ordered.

[2]      As to the first point, I inadvertently overlooked the matter of interest when I gave judgment  and  I recall  my judgment  to  the  extent  necessary to  repair  that omission.

[3]      Attending to the second issue as to what form any award of interest should take, I note that at the hearing before me in November, counsel for the plaintiff produced  a  memorandum  summarising  the  terms  of  the  judgment  the  plaintiff sought.  That memorandum included information concerning interest.  Interest was claimed on the judgment sum from 8 February 2011 until 14 November 2011, to the total of $26,797.95.   I agree that my judgment of 14 November 2011 should be modified by including judgment for interest in those terms.

[4]      Counsel for the plaintiff also now notes that a declaration is sought that interest on the sum of $311,917.92 ought to continue to accrue at the plaintiff’s default interest rate of 11.24 per cent per annum from the date of judgment until the date of actual payment pursuant, to clause 2.3 of the mortgage contract and clause 5 of the guarantee.

[5]      I accept that in light of the respective provisions of the mortgage and the guarantee respectively, the right to interest secured by the contract does not merge with the judgment.[1]   A declaration in these terms does not, of course, translate into a money judgment that can be enforced against the defendants.[2]   If the defendants do not comply with the terms of the declaration that would involve paying the principal

amount and all of the accruing interest, according to the sum calculated pursuant to

the Court’s judgment, the defendants then would not have complied with the declaration.   It is difficult to see how this would assist the plaintiff ’s position in practical terms.  I have some doubts about whether a declaration of dubious utility is a proper exercise of the Court’s power to issue declaratory judgments.

[1] Economic Life Assurance Society v Usborne [1902] AC 147 (HL) at 149-150.

[2] Westpac New Zealand Ltd v Wright HC Auckland CIV-2010-404-001023, 11 August 2010 at [15]- [16],

[6]      To obtain payment  of additional sums, it would  appear that the plaintiff would be required to take still further steps in Court proceedings either to obtain an additional money judgment for the additional interest from the judgment date or to obtain an order in the nature of an order for specific performance directing the defendants to pay such additional interest.3   However those are not matters that need to be considered in the context of the present judgment, and I restrict myself to making   the   order   sought   in   paragraph   four   of   counsel   for   the   plaintiff’s memorandum dated 14 November 2011.

[7]      I should note in conclusion that no submissions were received on these points from counsel for the defendants, who I understand has been served with a copy of the memorandum of counsel dated 20 December 2011.

[8]      On 16 February 2012 counsel signed a consent memorandum agreeing that the plaintiff should have costs in the sum of $29,337.21 and I make a costs order

accordingly.

J.P. Doogue

Associate Judge

3 Ibid, at [18].