Yingling v Gifford

[2021] NZHC 820

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2015-416-26

[2021] NZHC 820

BETWEEN

RANDY YINGLING

Plaintiff

AND

KEN GIFFORD

First Defendant

AND

DEAN WITTERS

Second Defendant

Hearing:	On the Papers
Counsel:	G J Thwaite for Plaintiff G R Webb for Defendants
Judgment:	16 April 2021

JUDGMENT OF CLARK J

[1]In my judgment dated 26 February 2021 I made the following orders:1

(a)The judgment of the Superior Court of California, (County of Kings), dated 26 April 2012 is enforceable in New Zealand.

(b)The plaintiff is entitled to costs which I award on a 2B basis, together with reasonable disbursements to be fixed by the registrar.

[2]        The Californian Court entered judgment against the defendants and awarded Mr Yingling US$382,895 (comprising compensatory damages of US$232,500, exemplary damages of US$150,000 and costs of US$395).

1      Yingling v Gifford [2021] NZHC 314 at [98].

YINGLING v GIFFORD [2021] NZHC 820 [16 April 2021]

[3]        On 15 April 2021 a memorandum of counsel for the plaintiff was put before me. Mr Thwaite’s memorandum is directed to the case officer and submits for review a “draft judgment” for approval with a final judgment to be submitted “when it is in order”. The draft judgment is for a total sum of NZ$1,033,173.07. That sum comprises:

(a)       damages NZ$528,203.89;

(b)interest NZ$434,140.18;

(c)costs NZ$55,379; and

(d)disbursements NZ$15,450.

[4]        A judgment sealed in these terms would not reflect the orders made in my judgment of 26 February 2021.

[5]        While in his statement of claim seeking a declaration that the Californian judgment is enforceable Mr Yingling  sought  interest,  no  interest  was  awarded. Mr Thwaite advanced no written or oral submissions in relation to interest and there was no basis for an award. The plaintiff sought enforcement of the judgment given in his favour on 26 April 2012 by the Californian Court. For reasons given in my judgment I concluded the plaintiff was entitled to a declaration of enforceability. The Californian judgment made no award (nor mention) of interest.

[6]        As to interest post-judgment, in Taylor v Asteron Life Ltd the High Court ordered that a judgment should be re-sealed without an award of interest for the post- judgment period.2 The plaintiff was required to return or destroy all copies of the pre- existing order because that order should not have included post-judgment interest: “[i]nterest on the amount awarded in a Court’s judgment arises by operation of law, and is not ordered by the Court”.3

2      Taylor v Asteron Life Ltd [2019] NZHC 2459.

3 At [4].

[7]        Similarly, in this case, the sealed judgment should reflect only the orders that I made and may also include the specific sums of costs and disbursements calculated by Mr Thwaite (namely costs of $55,379 and disbursements of $15,450).

[8]        I note for completion that the first statement of claim was filed in June 2015. Therefore, the Interest on Money Claims Act 2016 is inapplicable.

Karen Clark J

Solicitors:

G J Thwaite, Auckland for Plaintiff Nolans, Gisborne for First Defendant