Jacquet v Yarrow

[2015] NZHC 2873

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-665 [2015] NZHC 2873

BETWEEN  JEAN PHILLIPPE THADDEE JACQUET AND ESTHER TCHOUA JACQUET AS TRUSTEES OF THE ESTHER

JACQUET FAMILY TRUST AND JEAN PHILLIPPE THADDEE JACQUET AND TREVOR KEITH BOSS AS TRUSTEES OF THE JEAN PHILLIPPE THADDEE JACQUET FAMILY TRUST AND JEAN PHILLIPPE THADDEE JACQUET AND ESTHER TCHOUA JACQUET PERSONALLY

First Plaintiffs

TREVOR KEITH BOSS AND BRIAN ERSKINE-SHAW AS TRUSTEES OF THE TREVOR BOSS FAMILY TRUST Second Plaintiffs

Continued over

Hearing:	30 September 2015
Appearances:	G J Judd QC for Plaintiffs B J Mills for Defendants
Judgment:	18 November 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 18 November 2015 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

JACQUET v YARROW [2015] NZHC 2873 [18 November 2015]

ANDPAUL STEVEN YARROW First Defendant

PAUL STEVEN YARROW, MICHAEL CHANEL FINNIGAN AND SALVATORE RUSSO AS TRUSTEES OF THE PS YARROW FAMILY TRUST (NO 2)

Second Defendants

The application

[1]      The Plaintiffs seek summary judgment in respect of sums said to be due from the Defendants pursuant to a Deed of Guarantee and Indemnity dated 25 August

2006 (“guarantee”).1

[2]      Only Mr Yarrow, the First Defendant and the first named of the Second Defendants (sued as trustees of the PS Yarrow Family Trust (No 2) – “trust”), has opposed the substance of the Plaintiffs’ application.

[3]      The  Plaintiffs  have  discontinued  against  Mr  Russo,  one  of  the  Second

Defendants.

[4]      Mr Finnigan, another of the Second Defendants, has applied to have the proceeding against him struck out on the ground that any liability he might have is limited to the net assets of the trust in his hands and that he no longer holds any such assets.2     Mr Yarrow has not disputed Mr Finnigan’s evidence on this issue. Accordingly,  and  subject  to  matters  referred  to  in  counsel’s  submissions  dated

7 September 2015, I grant Mr Finnigan’s application but reserve the matter of costs.3

[5]      High Court Rules, r 12.2(1) provides:

12.2Judgment when there is no defence or when no cause of action can succeed

(1)       The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[6]      In Krukziener v Hanover Finance Ltd guidance was given as to how the

Court is to determine an application for summary judgment by a plaintiff:4

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried:

1      Notice  of  Interlocutory Application  by  Plaintiffs  for  Order  for  Summary  Judgment  dated

12 March 2015, and Affidavit of T K Boss sworn 12 March 2015 at Exhibit “E”.

2      Notice of Interlocutory Application on Notice by the Second-Named Second Defendant dated

31 July 2015.

3      Submissions in support of Summary…