Roberts v Stephens
[2025] NZHC 2498
•29 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2025-409-292
[2025] NZHC 2498
BETWEEN CHRISTOPHER ANDREW ROBERTS
Plaintiff
AND
TARINA MARIE STEPHENS
Defendant
Hearing: 21 August 2025 Appearances:
Plaintiff in person
C F Olds for Defendant
Judgment:
29 August 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 29 August 2025 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
ROBERTS v STEPHENS [2025] NZHC 2498 [29 August 2025]
[1] This is a plaintiff’s application for summary judgment. The plaintiff (Mr Roberts) contends that:
(a)the defendant (Ms Stephens) guaranteed a loan agreement between a Richard Boyle, as lender, and RAP Holdings Ltd (RAP), as borrower;
(b)RAP defaulted under the loan agreement;
(c)Mr Boyle has assigned the benefit of Ms Stephens’ guarantee to him; and
(d)Ms Stephens is indebted to him for $300,000, being the limit of Ms Stephens’ guarantee, along with interest and costs.
[2] Ms Stephens opposes summary judgment. Issues of both law and fact have been raised, including:
(a)Did Ms Stephens provide a guarantee?
(b)Was valid consideration provided for the guarantee?
(c)Is Mr Roberts’ application deficient in failing to disclose evidence of a “separate arrangement” reached between him and Mr Boyle, along with other relevant information?
(d)Was the guarantee validly assigned to Mr Roberts when the right to payment under the loan agreement remains with Mr Boyle?
(e)Is Mr Roberts estopped from seeking enforcement of the guarantee by reason of representations he made to Ms Stephens that it would not be enforced against her?
(f)Should the guarantee be reopened under the Credit Contracts and Consumer Finance Act 2003 for oppression, both in terms of having
been induced by oppressive means and enforced in an oppressive manner?
(g)Does Ms Stephens have valid cross-claims against Mr Roberts and RAP which are closely related to Mr Roberts’ claim such that it would be unjust to enter summary judgment.
[3] For the reasons that follow, it is not necessary to deal with all of these issues to determine this application.
A preliminary issue
[4] Shortly prior to the hearing Mr Roberts filed a supplementary affidavit without leave which I have had regard to in arriving at my decision. Following the hearing Mr Roberts has attempted to file two further supplementary affidavits; one from himself and one from Mr Boyle. He says these are to assist the Court to clarify matters raised at the hearing but they are, in fact, intended to resolve deficiencies in his application. Ms Stephens has not had an opportunity to respond to these affidavits and they will not be read.
The facts
[5] Mr Roberts and Ms Stephens have been involved in several business enterprises together, including RAP and Koha Fitness Christchurch Ltd (Koha).
[6] In November 2020, Mr Roberts was the sole director and shareholder in RAP. Ms Stephens no longer had any pecuniary interest in the company. She was at that time a shareholder in Koha. Mr Roberts was the sole director of, and a shareholder in, Koha.
[7] Mr Roberts asked Ms Stephens to sign as guarantor a loan agreement between Mr Boyle as lender and RAP as borrower. Mr Roberts was also to guarantee the loan. Ms Stephens agreed to sign the loan agreement but there is dispute as to the circumstances under which that occurred that I do not need to resolve to determine this application. Ms Stephens did not have any legal advice.
[8] The loan agreement is in a standard Auckland District Law Society form. The loan was for $820,000 and Ms Stephens’ guarantee was to be limited to $300,000. Mr Roberts and Ms Stephens are named on the first page of the document as guarantors. Mr Roberts signed the document as a director of RAP and as a guarantor. Ms Stephens signed the document as guarantor only.
[9]Immediately above the parties’ signatures is the following clause:
Conditions precedent to advance
Before we can make the first advance to you under this contract:
(a)you must have signed this agreement together with all of the securities;
(b)the conditions set out in the Annexure Schedule (if any) and any other pre-settlement requirements that we ask you to complete must have been completed to our satisfaction; and
(c)if any person is named in this agreement as a guarantor, the guarantor must have signed a deed of guarantee and indemnity in the form required by us and the conditions precedent to the acceptance of that guarantee (if any) must have been completed to our satisfaction.
[10]There is also under the heading “Table D – Additional provisions”:
THE PARTIES HERETO AGREE THAT THE LIABILITY OF TARINA MARIE STEPHENS IS LIMITED UNDER THE GUARANTEE TO THREE HUNDRED THOUSAND DOLLARS ($300,000.00)
[11] Mr Roberts does not rely on any other terms of the loan agreement as recording the fact or terms of the guarantee.
[12] No deed of guarantee between RAP and Ms Stephens was ever signed as contemplated by the loan agreement. The reasons for this are not explored in the evidence.
[13] It appears that RAP defaulted under the loan agreement. In early 2024, Mr Boyle demanded payment from Ms Stephens under the guarantee.
[14] On or about 25 April 2025, Messrs Boyle and Roberts entered into a document headed “Deed of Assignment”. The deed reads as follows:
BACKGROUND
A. The Assignor is the lender under a Term Loan Agreement dated 11 November 2020 (the Loan Agreement) made between the Assignor, RAP Holdings Limited (the Borrower), and the guarantors Christopher Andrew Roberts and Tarina Marie Stephens (the Guarantors).
B. Under the Loan Agreement, Tarina Marie Stephens guaranteed the obligations of the Borrower up to a maximum sum of $300,000 (the Guaranteed Amount).
C. The Borrower has defaulted in its obligations under the Loan Agreement.
D. The Assignor wishes to assign to the Assignee all of his rights, title, benefit, and interest in and to the Guarantee provided by Tarina Marie Stephens under the Loan Agreement, limited to the Guaranteed Amount, and the Assignee agrees to accept such assignment.
OPERATIVE PROVISIONS
1. Assignment
The Assignor hereby assigns to the Assignee absolutely all of his rights, title, benefit, and interest in and to the Guarantee provided by Tarina Marie Stephens under the Loan Agreement, limited to the Guaranteed Amount of
$300,000.
2. Consideration
The Assignee accepts this assignment in partial satisfaction of a separate arrangement between the Assignee and the Assignor for repayment of the remaining balance of the loan not covered by the Guarantee.
3. No Waiver of Other Rights
This Deed does not affect or waive the Assignor’s rights to recover any other part of the Loan not expressly assigned herein.
4. Governing Law
This Deed shall be governed by and construed in accordance with the laws of New Zealand.
[15] Ms Stephens received notice of the assignment on 3 May 2025, when Mr Roberts wrote to her that Mr Boyle had:
… assigned to me, Christopher Andrew Roberts, all rights, title and interest under the personal guarantee you executed on 11 November 2020 relating to a term loan agreement between Mr Boyle and [RAP].
[16] Also on 3 May 2025, Mr Roberts made demand upon Ms Stephens for payment of the $300,000. That letter states:
Although RAP Holdings Limited made regular monthly payments under the Term Loan Agreement, it has failed to repay the full principal and interest by the agreed due date. As such, RAP Holdings Limited is in default and your personal guarantee is now fully enforceable.
Accordingly, you are required to make full payment of $300,000 plus any applicable interest and legal recovery costs. Please arrange payment no later than 17 May 2025 to the following account …
[17] When payment was not made Mr Roberts issued this proceeding along with an application for summary judgment. Following service of the proceeding, Ms Stephens’ lawyers wrote to Mr Roberts raising several matters that are reflected in the defences now advanced in opposition to the summary judgment application. Ms Stephens denied any liability to Mr Roberts and invited him to withdraw the summary judgment application.
[18] Specifically, Ms Stephens’ lawyers advised that the summary judgment application was deficient in failing to provide necessary information to support the claim in the following respects:
6.In addition, your application does not provide detail of information which is critical to your claim against our client in the circumstances, and how the purported assignment to you has arisen, such as:
(a)the debt currently owed by RAP (or yourself as guarantor) to Mr Boyle;
(b)payments made by RAP (or yourself) in reduction of the debt to Mr Boyle; and
(c)the arrangement between you and Mr Boyle (and possibly RAP) that led to the purported assignment.
7.We invite you to provide us with these details as a matter of urgency.
[19] Mr Roberts did not provide that information to Ms Stephens’ lawyers or in support of this application.
Summary judgment principles
[20]The relevant rule is r 12.2(1) which reads:
12.2 Judgment 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.
…
[21] The principles that apply to a plaintiff’s summary judgment application were summarised by Associate Judge Osborne in Mount Grey Downs Ltd v Pinot Properties Ltd as follows:1
(a)Commonsense, flexibility and a sense of justice are required.
(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.
(c)The Court will not hesitate to decide questions of law where appropriate.
(d)The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements in affidavits.
(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.
(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.
(g)In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.
(h)The need for judicial caution in summary judgment applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case. Where a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required for the protection of the integrity of the summary judgment process.
(i)Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of proceedings.
1 Mount Grey Downs Ltd v Pinot Properties Ltd [2018] NZHC 3094 at [12] (footnotes omitted).
The issues
[22] Mr Roberts’ application for summary judgment cannot succeed. Ms Stephens has several arguable defences to his claim and I will explain why by dealing with each of the issues identified in [2] above.
Did Ms Stephens provide a guarantee?
[23] Section 27 of the Property Law Act 2007 provides that contracts of guarantee must be in writing as follows:
27 Contracts of guarantee must be in writing
(1)This section applies to contracts of guarantee coming into operation on or after 1 January 2008.
(2)A contract of guarantee must be—
(a)in writing; and
(b)signed by the guarantor.
(3)Subsection (2) does not require the consideration for a contract of guarantee to be in writing or to appear by necessary implication from a writing.
(4)In this section, contract of guarantee means a contract under which a person agrees to answer to another person for the debt, default, or liability of a third person.
[24] There is an issue arising as to whether the loan agreement Ms Stephens signed satisfied the requirements of s 27(2). There is Supreme Court authority in Brougham v Regan that supports the view it did not.2
[25] Brougham v Regan concerned a claim on a guarantee. Mr Brougham signed a term loan agreement as guarantor. The loan agreement was on what appears to have been materially similar terms to the loan agreement in this case. It contained the same conditions precedent provision as applies here (see [9]) and no separate deed of guarantee was ever signed by Mr Brougham. The lender took steps to enforce the guarantee and Mr Brougham defended the claim, including on the ground that the requirements of s 27(2) were not satisfied.
2 Brougham v Regan [2020] NZSC 118, [2020] 1 NZLR 315.
[26] The Supreme Court held that there was no contract of guarantee that complied with the requirements of s 27(2). In delivering the judgment of the Court, O’Regan J said:3
[36] In the present case, the loan agreement does not include any provision under which Mr Brougham agrees to answer to the trustees for the debt, default or liability of the company. On the contrary, the loan agreement makes it clear that a separate document to that effect is required as a condition precedent to the making of the advance. In the absence of that further document, no guarantee liability arises. The decision of the Court of Appeal in this case was predicated on its finding that “[t]he Agreement (and thus the obligations being guaranteed) is in writing”. With respect to the Court of Appeal, we do not consider that means the loan agreement meets the requirements of s 27(2) in the absence of any provision in the loan agreement under which Mr Brougham agrees to guarantee the company’s obligations.
...
[38] Mr Brougham signed a document but it was not a contract of guarantee. He is therefore not liable as guarantor of the obligations of the company under the loan agreement. As the High Court Judge observed in the present case, the consumer protection purpose of s 27(2) would not be met if a person who signs a document merely describing the signatory as a guarantor but otherwise containing no provisions of the purported guarantee was found to be liable as a guarantor. This is especially so where, as here, the document that was signed represents, first, that there would be two guarantors, but on the trustees’ case there is only one guarantor under the contract comprised in the loan agreement and, second, that the execution of a separate document was a condition precedent for the loan being made.
[27] As was the case in Brougham, the loan agreement Ms Stephens signed contains no provision under which she agrees to answer for RAP’s debt and makes it clear that a separate deed will be signed as a condition precedent to the making of the advance. There is also no further document evidencing the existence of a guarantee.
[28] Brougham is, of course, binding on this Court. I can see no basis upon which it can be distinguished, and certainly not in a summary judgment context without all the relevant evidence before me. It follows, in my view, that Ms Stephens has an arguable defence that she did not provide an enforceable guarantee.
3 (footnotes omitted)
Was there valid consideration for a guarantee?
[29] A guarantee is a contract and, like any other contact, must be supported by valuable consideration. While under s 27(3) of the Property Law Act the consideration for a contract of guarantee need not be recorded in writing, unless the guarantee is contained in a deed there must be consideration provided for it and such consideration must move from the creditor and not the principal debtor.4 Extrinsic evidence will be admissible to prove consideration when the document does not record the fact of any consideration having been provided.5
[30] Ms Stephens argues there was no consideration provided by Mr Boyle for the guarantee. Ms Stephens did not request Mr Boyle to provide the loan to RAP and it appears she knew nothing of it until Mr Roberts presented her with the loan agreement to sign. She also had no pecuniary interest in RAP. Mr Roberts has not referred to anything in the loan agreement that records any consideration having been provided for Ms Stephens’ guarantee.
[31] Mr Roberts argues that the Court of Appeal in Barry v Carlisle confirmed that signed guarantees are presumed to be supported by consideration.6 He also argues that, at the time she signed the guarantee, Ms Stephens stood to benefit directly from the loan advanced to RAP because it enabled her to receive and retain an 80 per cent controlling shareholding in Koha. He then argues that, even if there was no consideration provided, the guarantee remains binding because it was executed as a formal deed of guarantee.
[32] I do not accept Mr Roberts’ submissions. First, Barry v Carlisle is not authority for the proposition Mr Roberts asserts. Second, Koha was not a party to the loan agreement and there is nothing to suggest Koha or Ms Stephens benefitted from RAP’s arrangement with Mr Boyle. At the time the guarantee was signed Ms Stephens had resigned as a director of Koha and was in the process of transferring all her shares to Mr Roberts, and they were in fact transferred within two weeks of signing the
4 Shivas v Bank of New Zealand [1990] 2 NZLR 327 (HC) at 355.
5 Barry v Carlisle [2016] NZCA 551 at [51].
6 Barry v Carlisle, above n 5.
guarantee for no consideration. Furthermore it is Mr Boyle who must provide consideration for the guarantee, not Koha. Third, the loan agreement is not a deed.
[33] I am satisfied it is arguable there was no consideration provided for Ms Stephens’ guarantee.
Is Mr Roberts’ application deficient in failing to provide evidence of a “separate arrangement” reached between him and Mr Boyle as consideration for the assignment?
[34] Mr Roberts must satisfy the Court that Ms Stephens has no arguable defence. The Court cannot be satisfied that he has discharged his burden in circumstances where he fails to disclose documents that may be directly relevant to the existence of a defence. Mr Roberts has provided no explanation in his written submissions or to me during the hearing for his refusal to provide this information.
[35]As I have noted earlier, Mr Roberts failed to provide any evidence of:
(a)the debt currently owed by RAP or himself as guarantor to Mr Boyle;
(b)payments made by RAP or him in reduction of the debt to Mr Boyle; and
(c)the separate arrangement referred to in the assignment document between him and Mr Boyle that led to the purported assignment.
[36] As far as the amounts owed to RAP are concerned, this information is clearly relevant as if Mr Boyle has been paid by RAP and/or Mr Roberts or through recourse to other securities held, Ms Stephens could have no liability under her guarantee (assuming it was valid).
[37] My concern about the non-disclosure of information is heightened by the supplementary affidavit filed by Mr Roberts shortly before the hearing attaching a letter from Mr Boyle. In the affidavit and Mr Boyle’s letter there is no reference to any payments made or the amount presently owed to Mr Boyle, rather there is an ambiguous statement that “I confirm that I have not received any repayment of the
guaranteed amount of $300,000 from [Ms Stephens], nor from any person on her behalf”, which says nothing about what, if anything, is owed to Mr Boyle.
[38] I also accept the submission made for Ms Stephens that documents recording the separate arrangement referred to the assignment document are relevant and ought to have been disclosed. Ms Olds submits that the arrangement may well constitute a discharge or release of Ms Stephens’ liability under the guarantee, as the wording in the assignment suggests that Messrs Boyle and Roberts reached an arrangement whereby RAP has been discharged from liability for the amount Mr Roberts now claims against Ms Stephens.
[39] That is not the only basis upon which the arrangement could be relevant. If by the separate arrangement RAP was granted indulgences in relation to the time or terms of payment, or Ms Stephens’ right of recourse against RAP or any securities held by Mr Boyle for the loan has been impaired,7 then it may have the effect of discharging Ms Stephens’ guarantee.8
[40] Without full disclosure by Mr Roberts the Court cannot be satisfied that Ms Stephens has no arguable defence.
Is there any obligation that can be enforced against Ms Stephens when the right to payment under the loan agreement remains with Mr Boyle?
[41] This was an issue that I raised with Mr Roberts during the hearing. It concerns whether it is possible to assign a guarantee but not the underlying obligation to which the guarantee relates.
[42] Part 2, subpart 5 of the Property Law Act deals with the assignment of things in action, which includes a right to receive payment of a debt.9 Section 49(2) provides that a thing in action that is not capable of being assigned cannot be assigned under that subpart of the Act.
7 Property Law Act 2007, ss 53B and 53C.
8 Dunlop New Zealand Ltd v Dumbleton [1968] NZLR 1092 at 1096.
9 Property Law Act, ss 48 and 50.
[43] A guarantee is a thing in action that can generally be assigned, however there is authority that to effectively assign a guarantee it is also necessary to assign the right to performance of the principal contract to which it relates. The reason is that there is only one debt owed to a creditor by both the debtor and the guarantor, and to assign the benefit of the guarantee without the underlying debt creates two debts out of one.10
[44]In The Assignment of Contractual Rights, Tolhurst says:11
Contracts of guarantee are generally assignable, and are often expressed to be assignable. It is generally irrelevant to the guarantor whom it pays, and therefore the beneficiary generally can assign its contractual right to the benefit of the guarantee. Of course, ultimately this is a question of construction, and in any given case the guarantee may be for the personal benefit of a named beneficiary. …
It is generally thought that to assign a guarantee it is also necessary to assign the right to the performance of the principal contract. Usually whether or not that has occurred will be a question of construction. It has been held that if a creditor assigns the right to performance under the main contract but fails to assign the guarantee, then the assignor/creditor cannot enforce the guarantee. In addition, the fact that a guarantee is expressed to be given by the guarantor to the creditor and its ‘assigns’ is not alone sufficient to allow an assignee of the principal contract to enforce it. There must be an assignment of the guarantee and the benefit of the principal contract. ….
[45] The cases referred to in this regard are Hutchens v Deauville Investments Pty Ltd and International Leasing Corporation (Vic) Ltd v Aitken.12 In Hutchens, the High Court of Australia said:
[11]. … [P]ut differently, it would seem to be simply impossible, as a matter of basic principle, to assign the benefit of a guarantee or the security for it (as distinct from the property secured) while retaining the benefit of the guaranteed debt and thereby to convert the one debt owing by both principal debtor and guarantor to the one creditor into two debts, one owing by the principal debtor to the creditor and the other owing by the guarantor to the assignee. If it were otherwise, the position would seem to be that, by assigning the benefit of a guarantee and the guarantor’s security and retaining the benefit of a principal debtor’s indebtedness and the principal debtor’s security, a
10 G J Tolhurst The Assignment of Guarantees: A Review of Hutchens v Deauville Investments Pty Ltd (2011) 27 JCL 65 at 67.
11 Greg Tolhurst The Assignment of Contractual Rights (2nd ed, Hart Publishing, Oxford, 2016) at [6.99] (footnotes omitted). I note Tolhurst has separately cast doubt upon the reasoning in Hutchens but his concern appears to relate to the circumstance where there are separate contracts entered into between the creditor and debtor and the creditor and guarantor which is not the case here. See G J Tolhurst The Assignment of Guarantees: A Review of Hutchens v Deauville Investments Pty Ltd, above n 10.
12 Hutchens v Deauville Investments Pty Ltd [1986] HCA 85, (1986) 68 ALR 367; International Leasing Corporation (Vic) Ltd v Aitken [1967] 2 NSWR 427.
creditor could effectively divorce the guarantor’s liability from that of the principal debtor and effectively deprive the guarantor of the rights which flowed from his position as such including (where available) his rights of subrogation. …
[46] Applied to this case, Mr Boyle has purported to assign Ms Stephens’ guarantee but not the right to receive payment from her under the loan agreement. Where the primary obligation to pay a debt and the guarantee of that obligation are said to be contained in the one document, there is an argument whether that could be effective. I have found no decisions of the New Zealand courts on the point but the Australian authorities are persuasive and have been followed in state and federal courts in that country. In the absence of contrary authority and full argument on the matter, I consider this provides Ms Stephens with another arguable ground for opposing summary judgment.
Other grounds
[47] Ms Stephens also raises defences of estoppel and oppression under the Credit Contracts and Consumer Finance Act. I do not propose to discuss those defences. They raise disputed matters of fact that are clearly not suitable for resolution on a summary judgment application and do not need to be resolved given my finding on the other defences available to Ms Stephens.
[48] Similarly, it is not necessary to consider the prospect of cross-claims against RAP and Mr Roberts, which are contingent on Ms Stephens having a liability under the guarantee. However, Mr Roberts should consider before proceeding further with his action that if Ms Stephens is ultimately held liable to answer for the debt owed by RAP she will have rights of indemnity from RAP. It may well be, as Ms Stephens’ counsel submits, that from Mr Roberts’ perspective the pursuit of Ms Stephens may turn out to be a pointless exercise
Result
[49]Mr Roberts’ application for summary judgment is dismissed.
[50] Ms Stephens has been successful and seeks costs. I consider that in light of the findings in this judgment Mr Roberts should be given a further opportunity to make
submissions on costs. Mr Roberts may file any submissions within five working days and Ms Stephens shall have five working days to respond. Submissions are to be no longer than five pages. I will decide costs on the papers.
O G Paulsen Associate Judge
Solicitors:
Buddle Findlay, Christchurch
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