IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1317
[2023] NZHC 1500
BETWEEN FEDERAL CAPITAL LIMITED
Plaintiff/Respondent
AND
PETER JOHN SIMUNOVICH
Defendant/Applicant
Hearing: 13 March 2023 Counsel:
M Tingey for the Applicant/Defendant R Latton for the Respondent/Plaintiff
Judgment:
15 June 2023
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
Solicitors/Counsel:
Pidgeon Judd, Auckland
Fee Langstone, Auckland
M Tingey, Barrister, Auckland R Latton, Barrister, Auckland
FEDERAL CAPITAL LIMITED v PETER JOHN SIMUNOVICH [2023] NZHC 1500 [15 June 2023]
Introduction
[1] The defendant, Mr Peter Simunovich, seeks leave to appeal my judgment of 15 November 2022 declining his applications for summary judgment and/or strike out and for security for costs.1
[2] The plaintiff, Federal Capital Limited (FCL), has brought these proceedings in respect of two loans it made in 2019 to Seafish Tasmania Pty Limited (Seafish). The loans total $450,000 and are both in default. FCL says that Mr Simunovich personally guaranteed Seafish’s obligations in respect of both loans. FCL seeks recovery under its guarantee.
[3] Mr Simunovich submitted that summary judgment ought to be granted for his defence (or FCL’s claim ought to be struck out) because Mr Simunovich did not provide a written and signed guarantee in respect of either of the two loans as required by s 27(2) of the Property Law Act 2007 (PLA). Mr Simunovich said further that even if there were a guarantee, FCL did not have a right to enforce the guarantee without the consent of a third party which FCL did not have.
[4] I held that it was reasonably arguable that an agreement entered into by Mr Simunovich, FCL, and Seafish, referred to as the “Security Sharing Agreement” (SSA), included a contract of guarantee by Mr Simunovich to FCL. As it was in writing and was signed by Mr Simunovich it would comply with the requirements of s 27(2) of the PLA. However, I held that the full factual matrix needed to be understood before interpretating of the relevant provision. In addition, I held that it was reasonably arguable that FCL did have a right to enforce the guarantee without the consent of the third party and so I declined summary judgment and strike out.
[5] Mr Tingey submits that in declining summary judgment I relied on extrinsic evidence that is inadmissible because s 27(2) of the PLA together with s 7(1)(a) and
(b) of the Evidence Act 2006 either make inadmissible or exclude such evidence.
1 Federal Capital Ltd v Simunovich [2022] NZHC 2985 [Judgment].
Mr Tingey continues that the approach I adopted is inconsistent with the decision of the Supreme Court in Brougham v Regan.2
[6] In addition, Mr Tingey submits that there is insufficient evidence to support my finding that it is reasonably arguable that FCL may be able to enforce the guarantee on the basis that:
(a)FCL’s pleading did not seek to enforce the relevant guarantee by Mr Simunovich, the FE…
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- Case
- [2023] NZHC 1500
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing applications for leave to appeal, including the need for an arguable error of law or fact, the general or public importance of the appeal, the circumstances warranting incurring further delay, and whether the interests of justice are served by granting leave. The court also assessed whether a high threshold exists before leave to appeal will be granted.
In relation to the summary judgment and/or strike out decision, the court found that there was no arguable error of law or fact, and that the appeal lacked general or public importance. Furthermore, the circumstances did not warrant incurring further delay, and the interests of justice would not be served by granting leave.
Regarding the security for costs decision, the court found that only one factor supported granting leave, while the other factors clearly outweighed that factor. The court held that the interests of justice would not be served by granting leave, as it would likely delay the resolution of the case.
As a result, the applications for leave to appeal both the summary judgment/strike out application and the security for costs application were declined. The plaintiff was entitled to costs and the parties were asked to confer to agree on the costs, with memoranda to be filed if necessary.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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