Murray v UDC Finance Ltd - [2018] NZHC 3386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-085

[2018] NZHC 3386

BETWEEN
TREVOR JAMES MURRAY

Appellant

AND

UDC FINANCE LIMITED

Respondent

Hearing: 5 July 2018

Appearances:

Appellant in person

J M Embling for Respondent

Judgment:

18 December 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 18 December 2018 at 1:00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Minter Ellison Rudd Watts, Auckland

MURRAY v UDC FINANCE LIMITED [2018] NZHC 3386 [18 December 2018]

Introduction

[1] On 28 November 2017, Judge Harrison entered summary judgment in favour of UDC Finance Ltd against Mr Trevor Murray in the sum of $55,657.46.1 The Judge found that Mr Murray had not raised a credible defence or counterclaim to the application for summary judgment.

[2] Mr Murray, who is self-represented, now appeals against Judge Harrison’s decision.

Background

[3] Mr Murray was the sole director and shareholder of Enlightenz NZ Limited (Enlightenz), a company now in receivership and liquidation. The plaintiff, UDC Finance Limited (UDC), brought proceedings against Mr Murray on 10 March 2017. It applied for summary judgment on the same date.

[4] In its statement of claim UDC says that it advanced funds to Enlightenz in 2012 and 2013 under six written credit sale agreements.2 Those agreements funded the purchase by Enlightenz of six vehicles: a 2009 BMW 730D Sedan, a 2012 Volkswagen Passat Alltrack, a 2012 Volkswagen Passat Variant, a 2013 Volkswagen Passat Variant, a 2013 Volkswagen Passat TDI, and a 2013 forklift. Among other terms, UDC says that the agreements required Enlightenz to make monthly repayments, and entitled UDC to repossess and sell the goods on the provision of 10 working days’ notice if Enlightenz did not perform its contractual obligations; became insolvent; entered receivership; or went into liquidation. UDC says that Mr Murray provided a guarantee of all amounts payable by the company under the agreements.

[5] UDC further says that in early 2016, Enlightenz defaulted under the agreements by failing to make the monthly payments then due. Enlightenz was placed in liquidation in April 2016. UDC says that it sent Mr Murray notices of its intention to sell the six vehicles, and it then sold the vehicles through Turners Auctions between

1 UDC Finance Ltd v Murray [2017] NZDC 26323.
2 Three of the agreements were dated 21 December 2012, while the remaining three were dated 12 March 2013, 9 April 2013, and 3 September 2013.

June and November 2016. It says it retained Turners to provide professional advice as to the best marketing and method of sale in respect of each vehicle. Turners provided estimated auction values for each vehicle, and valuations were also provided by Mike Goeffic, an asset sales specialist contracted to UDC. UDC says all the vehicles were sold at or above the valuations provided by Turners and Mr Goeffic.

[6] The net proceeds of sale were applied to the amounts outstanding by Enlightenz…

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 Murray v UDC Finance Ltd

Details

AGLC: Murray v UDC Finance Ltd [2018] NZHC 3386
Case: [2018] NZHC 3386
Decision Date: 18 December 2018

CaseChat Overview and Summary

The case of Murray v UDC Finance Ltd concerns an appeal against the summary judgment entered in favour of UDC Finance Limited against Mr Trevor James Murray in the sum of $55,657.46. The appeal was heard by Justice Paul Davison on 18 December 2018. Mr Murray, the appellant, was the sole director and shareholder of Enlightenz NZ Limited, a company now in receivership and liquidation. UDC Finance Limited, the respondent, had brought proceedings against Mr Murray, claiming that he had provided a guarantee for the amounts payable by Enlightenz under six credit sale agreements, and that Enlightenz had defaulted under the agreements by failing to make the monthly payments due. UDC sought summary judgment against Mr Murray for the outstanding amounts due under the agreements with interest, less the net proceeds of sale of the six vehicles. Judge Harrison of the District Court had granted UDC's application for summary judgment on the basis that Mr Murray had not raised a credible defence or counterclaim. Mr Murray appealed this decision. The primary legal issue in this appeal was whether the District Court Judge had erred in rejecting Mr Murray's defence that UDC had breached its duty under s 110 of the Personal Property Security Act 1999 to obtain the best price reasonably obtainable as at the time of sale. Justice Davison considered the evidence and arguments afresh and concluded that Mr Murray had an arguable defence to UDC's claim on the grounds that UDC had failed in its duty as the secured party to take reasonable care to obtain the best price reasonably obtainable when selling the six vehicles. In particular, there was room for argument as to the true market value of the vehicles, whether Turners was the appropriate outlet for sale, and whether UDC should have accepted Mr Malinowski's offer to purchase the forklift or used an alternative method of sale that would have secured a comparable price to Mr Malinowski's offer. Consequently, Justice Davison found that there was a serious question to be tried and that summary judgment should not have been entered. The appeal was allowed, the order for summary judgment was set aside, and the matter was remitted to the District Court for directions as to the future conduct of the proceeding and mode of trial.

Orders