Waimauri Limited v Gordon - [2021] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-007

[2021] NZHC 2965

BETWEEN
WAIMAURI LIMITED

Plaintiff

AND

SUSAN GORDON as administrator of the estate of Colin Norman Gordon Defendant

Hearing: 6 October 2021

Appearances:

M Lenihan for Plaintiff

J Ironside and G Engelbrecht for Defendant

Judgment:

3 November 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] At the centre of this dispute is a 1949 Aston Martin DB1. To anyone who knows anything about motor cars, that in itself is enough to pique interest. It is an extremely rare and very valuable vehicle. Only 15 were ever made.

[2] The plaintiff, Waimauri Ltd, sues the defendant, Mrs Susan Gordon in her capacity as the administrator of the estate of her late husband, Mr Colin Gordon, pursuant to a term loan agreement that involved Waimauri as lender and a Mr Dale Conlon and Mr Gordon as borrowers. The agreement was executed as long ago as 9 February 2009. Waimauri contends that the borrowers have been in default since 9 May 2009 when the principal and interest (in the agreement designated “premium”) was payable. The original principal amount of the loan was $70,000. With the premium, and interest from 9 May 2009 at contractual rates, the amount sought is now close to $600,000.

WAIMAURI LIMITED v GORDON [2021] NZHC 2965 [3 November 2021]

[3] Waimauri has applied for summary judgment. In my judgment, its application cannot succeed. The balance of this judgment is directed at explaining why.

Summary judgment applications

[4] Summary judgment is provided for in pt 12 of the High Court Rules 2016. Rule 12.2(1) concerns applications by plaintiffs. It provides:

(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.

[5] The leading case is Kruikziener v Hanover Finance where the Court of Appeal said:1

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 not consistent 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…

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.

Continue reading Waimauri Limited v Gordon

Details

AGLC: Waimauri Limited v Gordon [2021] NZHC 2965
Case: [2021] NZHC 2965
Decision Date: 3 November 2021

CaseChat Overview and Summary

Waimauri Limited, the plaintiff, sued Susan Gordon, the defendant and administrator of the estate of her late husband Colin Gordon, over a loan agreement executed on 9 February 2009. Waimauri sought summary judgment against Mrs Gordon for the outstanding amount of $592,498.20. The defendant argued three defences: that Waimauri's claim was time-barred, that Waimauri had not established it paid the principal to the borrowers, and that Waimauri's delay amounted to oppression.

The court found that the loan agreement was a deed, thus Waimauri's claim was not time-barred under the Limitation Act 1950. The court also found that Waimauri had not provided sufficient evidence to establish that it paid the principal amount to the borrowers. Lastly, the court found that Waimauri's nine-year delay in enforcing the agreement raised the possibility that its actions were oppressive. The court therefore declined to make a summary judgment order, stating that the defendant was entitled to put the plaintiff to proof on the issues of payment and oppression.

The court's judgment was that Waimauri had not established that the defendant had no arguable defence to the claim. The court's preliminary view was that no costs order should be made at this stage, but costs were formally reserved. If counsel could not settle the issue, they could come back to the Court by memoranda in the usual way.

Orders