Westpac New Zealand Limited v Schwamm

[2012] NZHC 1041

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2012-483-86 [2012] NZHC 1041

UNDER  Part 12 of the High Court Rules

IN THE MATTER OF     an application for summary judgment

BETWEEN  WESTPAC NEW ZEALAND LIMITED Plaintiff

ANDZANE VINCENT COLIN SCHWAMM First Defendant

ANDKIRSTY JAN SCHWAMM Second Defendant

ANDANDREW PETER SCHWAMM Third Defendant

Hearing:         16 May 2012

(Heard at Wanganui (By Videolink))

Counsel:         J Unsworth - Counsel for Plaintiff

K J Schwamm - Second Defendant in person

Judgment:      16 May 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Simpson Grierson, Solicitors, Private Bag 92518, Auckland

Taylor Grant Tesiram, Solicitors, PO Box 4039, Auckland 1140

WESTPAC NEW ZEALAND LIMITED V ZVC SCHWAMM & ORS HC WANG CIV-2012-483-86 [16 May

2012]

[1]      Before the Court is an application by the plaintiff seeking summary judgment against the defendants.

[2]      In  so  far  as  the  application  against  the  third  defendant  Andrew  Peter Schwamm is concerned a Notice of Opposition to the application and supporting affidavit of the third defendant has been filed.

[3]      Counsel have also filed a joint consent memorandum requesting that the application against the third defendant be adjourned for a period of two months.

[4]      That said, by consent, the application for summary judgment against the third defendant is adjourned to a call at 10.00 am on 11 July 2012.

[5]      I turn now to the summary judgment application before me against the first defendant and the second defendant.

[6]      The  second  defendant,  Kirsty  Jan  Schwamm  (Ms  Schwamm),  appeared before me in person.  There was no appearance for her husband the first defendant, Zane Vincent Colin Schwamm.  Ms Schwamm confirmed that the proceedings had been served on herself and the first defendant but that there was to be no appearance for the first defendant.

[7]      Ms Schwamm indicated today that effectively she and the first defendant were not opposing this summary judgment application brought against them by the plaintiff.  Certainly no Notice of Opposition or supporting material had been filed on behalf of the first and second defendants.

[8]      In passing, the second defendant, Ms Schwamm did note that so far as she was concerned, she had a broad complaint that the plaintiff may have sold properties in question over which it held security at a value less than should reasonably have been achieved.   After hearing that complaint voiced by the second defendant Ms Schwamm,  I  invited  her  to  indicate  whether  she  wished  to  file  a  Notice  of Opposition  to  the  present  summary  judgment  application  (and  a  consequent

adjournment of this matter for two months) based upon the complaint she expressed over the plaintiff ’s sale of the security properties.

[9]      In response, the second defendant Ms Schwamm, confirmed that she and the first defendant did not wish to do this.  She commented that as they saw the position, it would make no difference as they had no assets and were not in a position to pay any debt established against them by the plaintiff Westpac New Zealand Limited.

[10]     That said, this matter proceeded effectively unopposed as against the first defendant and the second defendant.

[11]     As indicated above, the debt in question represents the shortfall after sale of security properties held by the plaintiff in terms of a home loan agreement and guarantee documents executed by the first and second defendants.

[12]     A memorandum has been filed by counsel for the plaintiff indicating the quantum of debt which is now sought.

[13]     Effectively as I have noted above, the claim by the plaintiff against the first and second defendants outlined in its statement of claim is unopposed.

[14]     That said, summary judgment is now granted to the plaintiff against the first defendant and the second defendant for the following sums:

(a)      As to the first cause of action against those defendants, summary judgment is granted for the amount claimed as set out in the statement of claim totalling $389,894.22 together with interest on the sum of

$389,151.22 at 11.24% per annum compounding every fortnight (on a

Friday) from 3 December 2011 until today totalling $20,367.03.

(b)      In   addition,   interest   is   continuing  to   accrue   on   this   sum   of

$389,151.22 as set out at para A(b) of the Memorandum from counsel for the plaintiff filed herein dated 15 May 2012.

(c)      As  to  the  second  cause  of  action  against  the  first  and  second defendants,  summary  judgment  is  now  granted  for  the  sum  of

$39,451.80 set out in the plaintiff’s statement of claim together with interest on the sum of $39,402.48 at the rate of 11.24% per annum compounding every fortnight (on a Monday) from 3 December 2011 up to today totalling $2,062.15.

(d)In addition interest continues to accrue on this sum of $39,402.48 as set out at para B(b) of the 15 May 2012 Memorandum from counsel for plaintiff.

(e)      In addition costs are awarded as set out at para B of the 15 May 2012 memorandum from counsel for the plaintiff on a category 2B basis to the   plaintiff   against   the   first   and   second   defendants   totalling

$7,520.00 together with disbursements as set out at para C of the 15

May  2012  Memorandum  from  counsel  for  the  plaintiff  totalling

$2,411.82.

[15]     The total amount therefore for which summary judgment is granted to the plaintiff against the first defendant and the second defendant including costs and disbursements totals $461,707.02.

[16]     Interest continues to accrue on the amounts specified above at paras [14](b)

and (d) above.

‘Associate Judge D.I. Gendall’