Clark v Kitching HC Wellington CIV-2004-485-2199 - [2005] NZHC 1660

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2004-485-2199

IN THE MATTER OF an Appeal under the District Courts Act 1947

BETWEEN

KENNETH ROBERT CLARK

Appellant

AND

LARAINE ROBYN KITCHING, WAYNE TREVOR CAMPBELL KITCHING AND SUZANNE LARAINE VINTINER AS TRUSTEES OF THE W & L KITCHING FAMILY TRUST

Respondents

Hearing:

23 March 2005

Appearances: J Rennie for Appellant
A Holloway for Respondents Judgment: 4 April 2005

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 4^th day of April 2005.

RESERVED JUDGMENT OF GENDALL J

[1] This is an appeal against a summary judgment entered in the District Court at Upper Hutt, after a defended hearing, on 16 September 2004. Judgment was in the sum of $20,000 together with costs, interest and disbursements of $3,243.69.

[2] The respondents (“the Kitching Trust”) claimed against the appellant (“Clark”) $20,000 based upon an on-demand loan made to him, which he had failed to repay. There were causes of action under the Contractual Mistakes Act 1977 and
in respect of money had and received and restitution, but as the District Court Judge
KENNETH ROBERT CLARK V LARAINE ROBYN KITCHING, WAYNE TREVOR CAMPBELL KITCHING AND SUZANNE LARAINE VINTINER AS TRUSTEES OF THE W & L KITCHING FAMILY TRUST HC WN CIV-2004-485-2199 [4 April 2005]

correctly observed, the claim was really based upon contract. Consideration clearly existed and he amended the statement of claim to comprise a cause of action for breach of contract to repay loan monies. He was correct in his assessment that there was no prejudice to the plaintiffs and no issue was taken of that on appeal.

[3] The Kitching Trust’s case was that Clark was the accountant for the Trust, and the Kitching family from 1975 until 2002. He was also one of the three trustees of the Trust in November 1996. At that time there was advanced to him the sum of
$20,000 from the Trust bank account. It was pleaded that he wished to use this for his personal investment in a restaurant (Cobb & Co) business in Lower Hutt. There was paid, from the Trust bank account, $20,000 on 19 November 1996. Demands for repayment of the loan were made on six occasions between 30 November 1998 and 16 April 2004. No written or other response was forthcoming.

[4] Mr Clark’s defence to the summary judgment application or his contention, was that:

“1. The alleged loan was an investment for which [Clark] was a conduit.

2.There was no agreement between the [trustees] and [Clark] for the loan of a sum of money.

3.One of the [trustees] is personally liable to [Clark] for a sum in excess of the figure claimed.”

[5] An affidavit was filed by Mr Clark in which he generally asserted that he was not interested himself in investing in the restaurant business. He said he had informed Mr Kitching one of the trustees, of a scheme which required an investment of $20,000;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Kitching HC Wellington CIV-2004-485-2199

Details

AGLC: Clark v Kitching HC Wellington CIV-2004-485-2199 [2005] NZHC 1660
Case: [2005] NZHC 1660
Decision Date: 4 April 2005

CaseChat Overview and Summary

In this case, the High Court of New Zealand considered an appeal against a summary judgment granted in the District Court. Kenneth Robert Clark appealed against the summary judgment entered in favour of the Kitching Trust for the amount of $20,000. The respondents claimed that Clark, who was the accountant for the Trust and the Kitching family, failed to repay an on-demand loan of $20,000 made to him in 1996. The primary legal issue was whether Clark could provide an evidential foundation for his defence that the $20,000 was not a loan but an investment made on behalf of the Trust or the Kitchings.

The court found that Clark's assertions did not meet the threshold of credibility required in summary judgment cases. The Judge noted that Clark, as the accountant, should have been able to provide documentary evidence to support his claim that the money was used for an investment in a restaurant business. However, Clark failed to provide any such evidence. The court held that the onus was on Clark to provide some evidential foundation for his defence, which he did not do. The District Court Judge was correct in concluding that Clark's assertions did not constitute an arguable or credible defence and that summary judgment was appropriately granted.

The appeal was dismissed, and the respondents were awarded costs on a Category 2B basis. The court emphasised the importance of providing documentary evidence to support defences in summary judgment cases and confirmed that the District Court Judge had exercised his discretion correctly in granting summary judgment.

Orders