SOUTH CANTERBURY FINANCE LIMITED V WF TYLER HC PMN CIV-2010-454-328

SOUTH CANTERBURY FINANCE LIMITED V WF TYLER HC PMN CIV-2010-454-328 11 October 2010IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV-2010-454-328BETWEEN SOUTH CANTERBURY FINANCE LIMITED Plaintiff AND WAYNE FRANCIS TYLER Defendant Hearing: 7 October 2010 Appearances: D.I. Sheppard - Counsel for Plaintiff P.J. Drummond - Counsel for Defendant Reasons for Decision: 11 October 2010REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: Fitzherbert Rowe, Solicitors, Private Bag 11016, Palmerston North Brittens, Solicitors, PO Box 548, Palmerston North 4440[1] Before the Court on 7 October 2010 was an application by the plaintiff seeking summary judgment against the defendant. This related to a claim by the plaintiff outlined in its statement of claim for the sum of $112,890.65 together with contractual interest and costs. This claim against the defendant was brought on the basis of his liability as guarantor with respect to certain indebtedness of his company, Central Autocourt (2000) Limited with the plaintiff. [2] Central Autocourt (2000) Limited is now in liquidation. [3] As matters progressed at the hearing of this matter before me on 7 October 2010, Mr Drummond for the defendant effectively conceded that, of the total amount claimed, the sum of $81,060.00, being a revised amount for which the plaintiff was now seeking summary judgment, was undisputed. [4] That said, an order was made on 7 October 2010 granting summary judgment to the plaintiff against the defendant for this sum of $81,060.00. [5] In doing so, I indicated that my reasons for this decision would follow. I now set out those reasons. [6] At the outset of the summary judgment hearing before me on 7 October 2010, Mr Drummond for the defendant conceded that the defendant as guarantor accepted liability to the plaintiff with respect to a certain amount of guaranteed indebtedness. As liability was thus no longer being contested, the issue before me came down to the question of quantum. [7] On this, as I indicated above, the plaintiff's statement of claim originally sought judgment for the sum of $112,890.65. Essentially, this represented a shortfall in recoveries made by the plaintiff from the defendant's company, Central Autocourt (2000) Limited, following repossession of the vehicles held by the plaintiff as security and their subsequent sale. [8] Before me, it became clear that issues had arisen between the defendant and the plaintiff over the sale price achieved for a number of these vehicles.[9] At the hearing, counsel conducted a careful examination of the various vehicles involved, their market values and actual sale prices received with reference to those individual market values. [10] Even conceding the defendant's argument with regard to the values received or allowed for the vehicles here at issue, this still left a final shortfall amount under the defendant's guarantee liability of $81,060.00. For summary judgment purposes it was clear that this amount was indisputably due to the plaintiff here. [11] There can be no doubt that in this case the plaintiff had satisfied the onus upon it in terms of r 12.2 High Court Rules to show the Court that the defendant had no reasonable defence to its claim against him for this sum of $81,060.00. There was little argument in terms of the established summary judgment test in Pemberton v Chappell [1987] 1 NZLR1 to contest the plaintiff's entitlement here to summary judgment for this $81,060.00. [12] Further, there was essentially nothing placed before the Court to indicate that it should exercise its residual discretion to refuse summary judgment for this amount here. [13] For these reasons, the summary judgment noted above for the sum of $81,060.00 was entered in favour of the plaintiff against the defendant. [14] As to costs on the application, these were reserved. [15] A direction was made on 7 October 2010 that Memoranda on the issue of costs were to be filed and served: (a) By the plaintiff within 5 working days of 7 October 2010; and (b) By the defendant within a further 5 working days of that date.Those memoranda were then to be referred to me for a decision on the issue of costs.'Associate Judge D.I. Gendall'