Frickleton v Stag Trading Limited - [2015] NZHC 2534

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-710 [2015] NZHC 2534

BETWEEN
CARL WILLIAM FRICKLETON

Plaintiff

AND

STAG TRADING LIMITED First Defendant

MARK ANDREW FRICKLETON Second Defendant

Hearing: 14 October 2015

Counsel:

J Grace for the Plaintiff
M Freeman for the Defendants

Judgment:

14 October 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] On 1 May 2014 I delivered a reserved judgment in which I dismissed an application by the plaintiff for summary judgment against the first defendant on a claim for a loan allegedly owed by the first defendant to the plaintiff. The reason for the dismissal of the summary judgment application was that the plaintiff had failed to show that the first defendant had no defence on the questions of (1) limitation and (2) liability for interest on the claimed loan.

[2] In the course of delivering the summary judgment, I dealt with an argument by the first defendant that there was in fact no loan made by the late Mr Frickleton to the first defendant. I found on that issue that the first defendant had not raised an arguable case that no loan had been made by Mr Frickleton to the first defendant, and that the first defendant had not raised any real question for trial on the issue of
whether the loan had been made.

CARL WILLIAM FRICKLETON v STAG TRADING LIMITED [2015] NZHC 2534 [14 October 2015]

[3] In the result, the first defendant succeeded in having the summary judgment application dismissed. The defendants have since included in their pleadings a contention that there was no loan. The plaintiff did not apply to strike those pleadings out.

[4] The defendants now apply to the Court under r 7.51 for an order rescinding that part of the summary judgment in which I found that the first defendant had failed to raise a serious issue on the existence of the debt which was claimed from the first defendant.

[5] The passage from the summary judgment which is the subject of the defendant’s application under r 7.51 reads:

[34] I am satisfied that the defendant has not raised an arguable case that no loan was made by Mr Frickleton to the defendant.

[35] There are, of course, evidentiary issues for the plaintiff, in that the loan agreement relied upon is said to have been made orally, and the party who entered into the agreement with Mark on behalf of the defendant is deceased and unable to give evidence. To meet that difficulty, the plaintiff relies on the evidence of Mr Chard, who deposes that he was privy to the relevant discussions. The plaintiff also relies on affidavits filed in the Family Court proceeding where, in an affidavit setting out details of his assets and liabilities, Mr Frickleton included as an asset the debt due to him from the defendant, and a letter from Mark dated 31 March 2004 in which he advised Mr Frickleton of his intention to “buy out” Mr Frickleton's share of High Street…

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 Frickleton v Stag Trading Limited

Details

AGLC: Frickleton v Stag Trading Limited [2015] NZHC 2534
Case: [2015] NZHC 2534
Decision Date: 14 October 2015

CaseChat Overview and Summary

Carl William Frickleton filed a claim against Stag Trading Limited and Mark Andrew Frickleton for a loan allegedly owed by Stag Trading Limited to Carl William Frickleton. The defendants sought to rescind a part of the summary judgment that found Stag Trading Limited had not raised an arguable case that no loan was made by Carl William Frickleton to Stag Trading Limited. The court dismissed the application for rescission, finding that the summary judgment did not create an issue estoppel as it was not fundamental to the decision to dismiss the summary judgment application. The court also noted that any failure to disclose information at summary judgment stage did not cause any injustice to the defendants as the decision was to dismiss the summary judgment application. However, the court reserved costs as the plaintiff pursued an argument that the summary judgment did create an issue estoppel.

The main legal issue the court had to decide was whether the summary judgment created an issue estoppel against the defendants on the question of whether there was or was not a loan from the plaintiff to the first defendant. The court concluded that the statements made on the limited evidence available at summary judgment stage, on the question of whether or not there was or was not a contract between the late Mr Frickleton and the first defendant, were not fundamental to the decision made, which was to dismiss the summary judgment application.

The court's reasoning was based on two decisions of the Court of Appeal on issue estoppel, namely Talyancich v Index Developments Ltd and Contact Energy Ltd v Attorney-General. The court found that an issue estoppel can only be founded on determinations which are fundamental to the decision, and without which the decision cannot stand. Other determinations cannot support an issue estoppel however definite the language in which they are expressed. The court also noted that if there had been an issue estoppel on the question of contract or no contract, the result of the summary judgment application (success for the first defendant) would have precluded any appeal on the issue of the existence of the contract. The court concluded that there was no need for, and no basis for, an order under r 7.51 rescinding the summary judgment.

The court dismissed the defendants' application under r 7.51, and found that the plaintiff pursued to the eleventh hour an argument that the summary judgment did create an issue estoppel. In those circumstances, the court considered that the appropriate course was to reserve costs, and there will be an order accordingly.

Orders