Utatao v Bishop Warden Limited - [2019] NZHC 1633

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…

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.

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Details

Case: [2019] NZHC 1633
Decision Date: 12 July 2019

CaseChat Overview and Summary

This appeal concerns the decision of Judge Harrison of the Auckland District Court to grant an application for summary judgment in favour of Bishop Warden Limited against Mathew Utatao. The primary issues were whether Mr Utatao signed the consultancy contracts in a dual capacity, including as a guarantor, and whether the assignment of the debt to Bishop Warden was valid. The court considered the arguments presented by both sides, including the objective meaning of the contracts and the validity of the assignment under the Property Law Act 2007.

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