LYNN MICHAEL REDDEN V MICHAEL HENRY HARVEY AND KIM HARVEY HC NEL CIV-2011-442-000469

LYNN MICHAEL REDDEN V MICHAEL HENRY HARVEY AND KIM HARVEY HC NEL CIV-2011-442-000469

The term loan agreement imposed an absolute obligation on the defendants to repay the $36,000 plus agreed interest on the earlier of two years from advance or sale of the completed house; clause 16.1 of the sale agreement merely prescribes a source (joint venture profit, if any) for repayment and does not negate the...

Source-derived case information.

Citation
openlaw-a10282a1_d6d3_4a35_b67e_561aad6461e7.pdf
Parties
Plaintiff: Lynn Michael Redden; Defendant: Michael Henry Harvey; Defendant: Kim Harvey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 December 2011
Procedural Posture
Civil Contract/debt (term Loan) / Application for Summary Judgment (heard 8 Dec 2011, Judgment 16 Dec 2011)
Outcome
Judgment for plaintiff
Legal Topics
Summary Judgment, Contract Interpretation, Loan Repayment, Joint Venture, Interest
Contract Civil Procedure Property Summary Judgment Contract Interpretation Loan Repayment Joint Venture Interest

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Parties

Lynn Michael Redden

Plaintiff

Michael Henry Harvey

Defendant

Kim Harvey

Defendant

Procedural Posture

Civil Contract/debt (term Loan) / Application for Summary Judgment (heard 8 Dec 2011, Judgment 16 Dec 2011)

Legal Issues

  1. 1 Whether the defendants have an arguable defence to repayment of the $36,000 term loan
  2. 2 Whether clause 16.1 of the sale agreement makes repayment contingent on the joint venture making a profit
  3. 3 Whether the plaintiff failed to take reasonable steps to mitigate loss or to market the property resulting in inflated interest

Ratio Decidendi

The term loan agreement imposed an absolute obligation on the defendants to repay the $36,000 plus agreed interest on the earlier of two years from advance or sale of the completed house; clause 16.1 of the sale agreement merely prescribes a source (joint venture profit, if any) for repayment and does not negate the express repayment obligation, so the defendants have no arguable defence and summary judgment is appropriate.

Court Disposition

Judgment for plaintiff

Orders

  • Judgment for plaintiff in the sum of 57,506.11 NZD (principal and interest)
  • Costs to plaintiff on a 2B basis plus disbursements totalling 9,037.20 NZD