York Investment Limited v OE Crane & Equipment Limited (formerly OE Construction Ltd & OE Assets Limited)

[2021] NZHC 2263

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001201

[2021] NZHC 2263

BETWEEN

YORK INVESTMENT LIMITED

Plaintiff

AND

OE CRANE & EQUIPMENT LIMITED

(formerly OE Construction Ltd & OE Assets Limited)
First Defendant

NICHOLAS REGINALD MCCONCHIE

Second Defendant

Hearing:

31 August 2021

Appearances:

J A Wickes for Plaintiff

No appearance for or by First Defendant Second Defendant, Mr McConchie in person

Judgment:

31 August 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 31 August 2021 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Loo & Koo, Auckland

Copy to:

Mr NR McConchie

YORK INVESTMENT LTD v OE CRANE & EQUIPMENT LIMITED [2021] NZHC 2263 [31 August 2021]

[1]        The plaintiff seeks summary judgment against the first and second defendants in the sum of $128,490.88. The proceedings have been served on the defendants and an affidavit of service has been filed.

[2]        The matter was called before the Court on 24 August 2021. Counsel for the plaintiff – Ms Wickes – advised the Court that she had received an email from the second defendant, Mr McConchie. The Registrar then emailed Mr McConchie advising how he could participate remotely in the hearing. The Court then received an email from the defendants attaching a document titled “Statement of Defence”. In that document, the defendants admitted the allegations made by the plaintiff.

[3]        Gault J adjourned the proceedings to 31 August 2021. He issued a minute recording that Mr McConchie would need leave to oppose the plaintiff’s application out of time and requiring him to file a notice of opposition and supporting affidavit by 27 August 2021.

[4]        On 27 August 2021, Mr McConchie sent through a further email to the Court. He asserted that a statutory demand had been served, but that it had been addressed to the wrong company.

[5]        The statutory demand is not relevant for present purposes. These are separate summary judgment proceedings.

[6]        The plaintiff seeks judgment pursuant to a deed of lease entered into between the parties on 6 May 2019. The plaintiff leased premises in Te Atatu South to a company then known as OE Construction Ltd, for a term of four years, commencing 1 July 2019 at an initial rental of $129,750 plus GST per annum.

[7]        The lessee changed its name to OE Crane & Equipment Ltd as from 2 July 2019.

[8]Mr McConchie guaranteed the lessee’s obligations under the lease.

[9]        The first defendant has failed to pay rental and outgoings for the period commencing 1 November 2020, totalling $109,427.18, and interest under the lease is accrued on the rent and outgoings to 28 June 2021 in the sum of $4,775.09.

[10]      I am satisfied that the defendants have no defence to the claim. The sum owing is $128,490.88 made up as follows:

(a)principal as per the prayer for relief in the statement of claim of

$114,202.27;

(b)interest at 12 per cent on the sum of $109,427.18 from 29 June 2021 to the date of judgment – 63 days at $35.97 per day, in total $2,266.11;

(c)and the plaintiff’s costs, calculated on a 2B basis, in the sum of

$12,022.50.

[11]      Judgment is entered for the plaintiff in the sum of $128,490.88. Judgment is against the first and second defendants jointly.

Wylie J