IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000577 [2015] NZHC 212
BETWEEN UDC FINANCE LIMITED
Plaintiff
AND
STEPHEN DALE ROUT First Defendant
AND
MARU STACEY ROUT Second Defendant
JANE ROUT and STEPHEN DALE ROUT as trustees of the SD and JM ROUT FAMILY TRUST
Third Defendants
Hearing: 5 February 2015 Appearances:
M D Pascariu for Plaintiff
A N Riches for Second DefendantJudgment:
19 February 2015
JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] The plaintiff (UDC) sues the second defendant (Mr Rout) under a guarantee he signed on 13 June 2007 by which he, the first defendant Stephen Rout (his father), and three companies in which his father and others held shares, guaranteed repayment to UDC of all guaranteed amounts then or in the future payable to UDC by each of the other guarantors. UDC seeks judgment for the sum owed to it by Stephen Rout as guarantor of the indebtedness of three companies, Steve Rout Contracting Limited, Blue 9 Limited, and Southern L C Limited.
[2] Mr Rout does not deny that he signed the guarantee, nor does he dispute the amount claimed from him by UDC. He says, however, that he signed the guarantee
under undue influence, and that UDC is estopped from claiming any sum from him.
UDC FINANCE LTD v ROUT [2015] NZHC 212 [19 February 2015]
[3] UDC applies for summary judgment against Mr Rout, under r 12.2 of the
High Court Rules. This 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.
...
[4] The principles the Court is to apply on an application for summary judgment are summarised in Krukziener v Hanover Finance Ltd:1
[26] The principles are well settled. 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: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic…
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- Case
- [2015] NZHC 212
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