IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-2857
[2019] NZHC 1633
UNDER section 124 of the District Courts Act 2016 IN THE MATTER
of an appeal against the decision of His Honour, G M Harrison DCJ on 10 December 2018 (CIV-2018-004-000346; [2018] NZDC
25254)
BETWEEN
MATHEW KEITH UTATAO
Appellant
AND
BISHOP WARDEN LIMITED
Respondent
Hearing: 9 July 2019 Appearances:
P F Chambers for the Appellant N S Tabb for the Respondent
Judgment:
12 July 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 12 July 2019 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Henley-Smith Law, Auckland
N Tabb, Auckland
Counsel: P F Chambers, Auckland
UTATAO v BISHOP WARDEN LTD [2019] NZHC 1633 [12 July 2019]
Introduction
[1] This is an appeal by Mathew Utatao against a decision of Judge Harrison of the Auckland District Court granting an application for summary judgment against him in favour of the respondent, Bishop Warden Ltd (Bishop Warden).1
Background
[2] Mr Utatao was the sole director of MNC Group Ltd (in liquidation). He sought the professional consultancy services of Terra Group NZ Ltd, trading as Terra Consultants (Terra), in relation to a proposed subdivision of land at 156 Albany Highway, Auckland. The terms of the engagement are set out in a written contract (short form agreement) dated 3 February 2016 between MNC and Terra which was signed by Mr Utatao.
[3] This was followed by another request from Mr Utatao for Terra’s services in relation to a further proposed subdivision of land at 34 Finch Street, Western Springs. A second agreement in materially the same terms between MNC and Terra dated 25 July 2016 was signed by Mr Utatao.
[4] A third agreement between MNC and Terra also in relation to the Finch Street property dated 30 July 2016 was signed by Mr Utatao. This agreement was materially the same as the other two agreements.
[5] Terra undertook the work and rendered four invoices. Nothing was paid against the invoices.
[6] Bishop Warden says that, by written deed of assignment dated 1 November 2017, it purchased all legal and beneficial interest in the debts defined in the deed as:
All debts owning from MNC Group Limited and [sic] Matthew Utatao to the Assignor [Terra] as at 31 October 2017 for unpaid invoices of $28,459.19 plus all costs incurred in pursuing payment of unpaid invoices including interest (if any).
1 Bishop Warden Ltd v Utatao [2018] NZDC 25254.
[7] Bishop Warden sought summary judgment in the District Court against Mr Utatao for payment of the debt. Judge Harrison granted the application. Mr Utatao now appeals to this Court.
Approach on appeal
[8] Appeals are by way of rehearing.2 This does not mean that the court starts with a clean slate. It does, however, have to come to its own conclusion based on the material before the decision-maker.
[9] The appeal is to be…
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- Case
- [2019] NZHC 1633
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CaseChat Overview and Summary
The court found that Mr Utatao signed the contracts in a dual capacity, as evidenced by the terms of the contracts and the explicit reference to the guarantor's obligations. It was determined that there was no requirement for Terra to explain the capacity in which Mr Utatao was signing, as signatories are bound by the terms they agree to. Additionally, the court held that the assignment of the debt to Bishop Warden was valid, rejecting Mr Utatao's claims that it was a bare assignment or illegal. The court found the deed of assignment sufficient to establish the transfer of debts and dismissed Mr Utatao's other arguments regarding the background summary, section 27 of the Property Law Act, and the Fair Trading Act 1986.
Ultimately, the appeal was dismissed, and the court reserved costs, indicating that Bishop Warden was likely entitled to costs on a 2B basis. The court provided instructions for the parties to attempt to agree on costs and submit memoranda if necessary.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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