Farr v Knowles - [2019] NZHC 2474

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-85

[2019] NZHC 2474

BETWEEN
GRAEME LESTER FARR

Appellant

AND

ALEX FERGUSON KNOWLES

Respondent

Hearing: 16 July 2019

Appearances:

J Porter for Appellant J Haig for Respondent

Judgment:

30 September 2019

JUDGMENT OF GRICE J

Introduction

[1] On 24 January 2019 summary judgment for the sum of $105,000 was entered against Mr Farr in favour of Mr Knowles.1 The Judge found that the series of agreements entered into between them evidenced personal loans repayable by Mr Farr.

[2]Mr Farr appeals against the summary judgment on the basis:

(a)leave should never have been granted to bring a summary judgment application;

(b)the Judge failed to appropriately consider the defences raised by Mr Farr;

1 Farr v Knowles [2018] NZDC 25898.

FARR v KNOWLES [2019] NZHC 2474 [30 September 2019]

(c)the underlying facts were disputed making the matter inappropriate for summary judgment; and

(d)the summary judgment application was conducted in an unfair and prejudicial manner because Mr Farr was not allowed to be properly heard either orally or in written submissions.

The District Court proceedings

Procedural background

[3] Between 2010 and 2011 Mr Knowles made a series of payments to Mr Farr pursuant to a series of written agreements. In 2012 Mr Knowles demanded payment. Mr Farr failed to comply with that demand. In March 2013 Mr Knowles filed a statement of claim in the District Court and Mr Farr responded with a protest as to jurisdiction. It appears that Mr Farr was uninformed about the progress of the proceedings beyond that point. His protest was set aside2 and a default judgment was entered against him without his knowledge in November 2013.

[4] Four and a half years later, in May 2018, Mr Knowles took steps to enforce that default judgment. Mr Farr then applied to set aside the judgment on the basis it was made irregularly as he had not been served with any documents following the filing of the protest as to jurisdiction.

[5] Mr Farr’s application was successful. On 29 August 2018 the default judgment was set aside.3 In the same decision the Judge granted leave to Mr Knowles to file a summary judgment application out of time. That decision has not been appealed.

District Court decision

[6] On 23 November 2018 a defended summary judgment hearing took place. The Judge issued his decision on 24 January 2019 granting summary judgment to Mr Knowles.

2 Farr v Knowles DC Wellington CIV-2013-085-164, 26 July 2013.
3 Farr v Knowles DC Wellington CIV-2013-085-164, 29 August 2018 [Leave Decision].

Factual background

[7] The decision outlined the background. The following is based on the narration in the judgment.

[8] In 2009 Mr Knowles decided to become involved in two ventures proposed by Mr Farr: the development of a shopping mall in New Plymouth and a “car supermarket” operation. Mr Farr was to undertake the work required to establish the businesses and Mr Knowles would…

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.

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Details

Case: [2019] NZHC 2474
Decision Date: 30 September 2019

CaseChat Overview and Summary

Graeme Farr appeals against summary judgment entered against him in the District Court for $105,000. Alex Ferguson Knowles filed a statement of claim in the District Court in 2013. Mr Farr did not respond. A default judgment was entered against him in 2013. Mr Farr applied to set aside the default judgment on the basis he had not been served with any documents following the filing of his protest as to jurisdiction. His application was successful and the default judgment was set aside. Mr Knowles applied for leave to file a summary judgment application out of time. The District Court granted leave and Mr Knowles filed a summary judgment application. The District Court granted summary judgment to Mr Knowles. Mr Farr appeals the decision. The appeal grounds are: (a) leave should never have been granted to bring a summary judgment application; (b) the Judge failed to appropriately consider the defences raised by Mr Farr; (c) the underlying facts were disputed making the matter inappropriate for summary judgment; and (d) the summary judgment application was conducted in an unfair and prejudicial manner because Mr Farr was not allowed to be properly heard either orally or in written submissions. The appeal succeeds on the basis that Mr Farr has raised an arguable defence that cannot be determined in the absence of a full hearing. The proceedings were therefore unsuitable for summary judgment. The appeal is allowed. The proceedings are remitted to the District Court for hearing on the ordinary proceedings track. Costs are to be the subject of submissions.

Orders