Kung v DVD Advance Limited - [2018] NZHC 3319

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-000081

[2018] NZHC 3319

BETWEEN
MARIE KUNG

Plaintiff

AND

DVD ADVANCE LIMITED

First Defendant

AND

DANIEL MARK FERGUSON

Second Defendant

Hearing: 21 November 2018

Appearances:

L A Andersen for Plaintiff C J G Lucas for Defendants

Judgment:

14 December 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] Ms Kung owns a property at 735 Great King Street, Dunedin. On or about 18 November 2013 the first defendant (DVD), which operated a DVD rental business, entered an agreement to lease the premises from her. The agreement was signed for DVD by the second defendant (Mr Ferguson) who is its sole director. He also signed the document adjacent to the words “Gauranteed (sic) by DANIEL FERGUSON”. In this judgment, this document is referred to as the agreement to lease.

[2] It is common ground that neither DVD nor Mr Ferguson has paid all the rent or outgoings provided for in the agreement to lease. Ms Kung sues DVD as tenant and Mr Ferguson as guarantor. She claims rent and outgoings up to December 2016, with interest.

KUNG v DVD ADVANCE LTD [2018] NZHC 3319 [14 December 2018]

[3] DVD accepts liability for unpaid rent and outgoings up to 23 May 2016. It says the lease ended on that date as the premises became uninhabitable due to a flood caused by a blocked drain. DVD, therefore, denies liability for any rent or outgoings after that date. Mr Ferguson denies liability altogether.

[4]Ms Kung applies for summary judgment.

Principles applicable to summary judgment

[5] Rule 12.2 of the High Court Rules provides that the Court may give judgment against a defendant if a plaintiff satisfies the Court that the defendant has no defence to its claim. The onus of establishing this position is on the plaintiff. The Court must be left without any real doubt or uncertainty on this point.1

[6] As a general rule, the Court considering a summary judgment application will not attempt to resolve genuine conflicts of evidence or assess the credibility of statements made by the parties in their affidavits. However, it is also established that the Court is not prevented by this principle from rejecting spurious defences or plainly contrived factual conflicts on the evidence. The position is summarised this way in Attorney-General v Rakiura Holdings Ltd:2
In a matter such as this it would not be normal for a judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them. On the other hand, in the words of Lord Diplock in Eng Mee Yong v Letchumanan,³ the Judge is not bound:

to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.

[7] It…

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: [2018] NZHC 3319
Decision Date: 14 December 2018

CaseChat Overview and Summary

Marie Kung sued Daniel Ferguson and his company, DVD Advance Limited, seeking unpaid rent and outgoings from a lease agreement. The court considered a summary judgment application by Ms Kung against both defendants for unpaid rent, outgoings, and interest. The agreement to lease between Ms Kung and DVD was signed by Mr Ferguson as guarantor. DVD admitted liability for unpaid rent and outgoings up to 23 May 2016, when the premises became uninhabitable due to a flood. Mr Ferguson denied liability altogether. The court found that while Ms Kung established DVD's liability for the rent and outgoings up to 23 May 2016, there was insufficient evidence to determine liability beyond that date. The court also found that Mr Ferguson was liable as a guarantor for the period up to 23 May 2016. The court awarded summary judgment in favour of Ms Kung against both defendants for the amount owed up to 23 May 2016, but declined to award interest at this stage. The case was adjourned for further determination of interest.

Orders