Property Funding Limited v King - [2014] NZHC 2490

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2014-476-000043 [2014] NZHC 2490

BETWEEN
PROPERTY FUNDING LIMITED

Plaintiff

AND

JUDITH RUTH KING Defendant

Hearing: 6 October 2014

Appearances:

J Moss for Plaintiff
S R Carey for Defendant

Judgment:

6 October 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on plaintiff's summary judgment application

Introduction

[1] The plaintiff, PFL, seeks summary judgment against the defendant, Mrs King, for stock and station firm debts incurred by Mrs King and her husband as farming partners up to December 2009. The debt as at 31 January 2010 stood at
$361,453.61 together with interest and solicitor/client costs on contractual terms. PFL’s status arises from debts which were owed to PGG Wrightson (PGG) with whom Mr and Mrs King had previously incurred debts. The debts were assigned to PLF. PFL’s rights to recover the debts from someone are not in dispute. What Mrs King disputes is the assertion that she remains a debtor.

Plaintiff ’s summary judgment – the principles

[2] Counsel have no differences as to the summary judgment principles to be applied and counsel simply set out my standard summary of the principles.

PROPERTY FUNDING LIMITED v KING [2014] NZHC 2490 [6 October 2014]

[3] The starting point for a plaintiff’s summary judgment application is r 12.2(1) High Court Rules, which requires that the plaintiff satisfy the Court that the defendant has no defence to any cause of action in the statement of claim or to a particular cause of action.

[4] I summarise the general principles which I adopt in relation to this application:

(a) Commonsense, flexibility and a sense of justice are required.1

(b)The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence. The Court must be left without any real doubt or uncertainty on the matter.2

(c) The Court will not hesitate to decide questions of law where appropriate.3

(d)The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements and affidavits.4

(e) In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other
statements, or inherently improbable.5

(f) In assessing a defence the Court will look for appropriate particulars and a reasonable level of detailed substantiation – the defendant is under an obligation to lay a proper foundation for the defence in the
affidavits filed in support of the Notice of Opposition.6

1      Haines v Carter [2001] 2 NZLR 167 (CA) at [97].
2      Pemberton v Chappell [1987] 1 NZLR 1 (CA).
3      European Asian Bank AG v Punjab & Sind Bank [1983] 2 All ER 508 (CA) at 516.
4      Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21.
5      Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC).

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.

Keep reading for free

Create a free CaseChat account to read Property Funding Limited v King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2490
Decision Date: 6 October 2014

CaseChat Overview and Summary

Property Funding Limited (PFL) sought summary judgment against Judith King for debts incurred by her and her husband as farming partners. The debt, including interest and costs, stood at $361,453.61 as of January 2010. PFL argued that Mrs King remained liable for the debts, which were originally owed to PGG Wrightson (PGG) and subsequently assigned to PFL. Mrs King disputed that she remained liable, arguing that she was released from liability through a novation agreement where Kingloch Farms Limited, a family company, became the principal debtor. The court had to decide if Mrs King could be released from liability by novation without a written agreement. The court considered the documentary evidence and witness testimonies, noting that PGG's conduct and communications post-December 2009 aligned with the argument that Kingloch became the principal debtor. However, the court found that it was at least arguable that Mrs King was released from liability, as her husband's evidence suggested an agreement to this effect. The court concluded that PFL had not met the threshold for summary judgment and dismissed the application, reserving costs pending further proceedings. The court also directed the timetable for filing a defence and scheduling a case management conference.

Orders