Wilson Parking New Zealand Limited v Jaques
[2025] NZHC 757
•2 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002573
[2025] NZHC 757
BETWEEN WILSON PARKING NEW ZEALAND LIMITED
PlaintiffAND
DAVID ARTHUR JAQUES
Defendant
Hearing: 27 March 2025 Appearances:
R Hucker / R Lakhan for the Plaintiff Defendant in Person
Judgment:
2 April 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 2 April 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Molloy Hucker, Auckland
WILSON PARKING NZ LTD v JAQUES [2025] NZHC 757 [2 April 2025]
Introduction
[1] The plaintiff seeks summary judgment against the defendant for advances it made to Digital Advertising Limited (DAL) for the construction and supply of two electronic billboards. The advances were guaranteed by the defendant.
[2]The defendant opposes summary judgment on two grounds:
(a)DAL was not in breach of its obligations under the loan agreements as the “performance of the contract was paused while the parties renegotiated” and, as the time for payment under the loan agreements by DAL had not arisen, there was no default.
(b)The receivers appointed by the plaintiff were invalidly appointed because the plaintiff did not have the right to appoint receivers to DAL under the general security agreement (GSA) which DAL granted to the plaintiff to secure the advances.
[3]It is not in dispute that neither DAL nor the defendant have repaid the advances.
Legal principles
[4]Rule 12.2(1) of the High Court Rules 2016 provides:
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 relevant principles governing a summary judgment application are well-established:1
(a)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. The Court must be left without any real doubt or uncertainty.
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
(b)The onus is on the plaintiff, but where the evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated.
(c)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, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable. In the end, the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.
[6] The defendant is under an obligation to lay a proper foundation for their defence in the affidavits filed in support of the notice of opposition.2
The contractual framework
[7] In March 2024 the plaintiff and DAL agreed that the plaintiff would loan DAL money to construct and supply two electronic billboards to be located on land owned by the plaintiff. DAL would lease the land from the plaintiff under two license agreements and it would retain the revenue generated by the billboards. The terms of the license agreements are not relevant to the issues in this application.
[8]To effect this arrangement, the parties entered into:
(a)two identical loan agreements;
(b)a deed of guarantee and indemnity (the guarantee);
(c)the GSA.
2 Middleditch v NZ Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.
[9] It is not in dispute that the plaintiff, DAL and the defendant entered into and are bound by the terms of these agreements.
[10] The defendant was substantially involved in the negotiation of the form of the loan agreements, the license agreements, the guarantee and the GSA.
The loan agreements
[11]The loan agreements are identical. The purpose of them is described:3
The Loan Facility shall be used by [DAL] for the construction and installation of a digital billboard on the premises at [location].
[12] The loan agreements went on to provide that DAL may not use the loan facility for any other purpose without obtaining the prior written consent of the plaintiff.4
[13] The loan agreements provided for staged drawdowns of agreed amounts for the construction and supply of the electronic billboards to be located at two locations in Christchurch. Each loan agreement related to the provision of one electronic billboard at one of the agreed locations.
[14] The loan agreements provided that DAL would make monthly instalments of the principal sum in agreed amounts on agreed dates.5 The first payment under each loan agreement was due on the “first payment instalment” date of 1 August 2024.
[15] Interest was payable under the loan agreements at the higher interest rate of 14 percent per annum, unless the plaintiff at its sole discretion agreed that the lower interest rate of 10 percent per annum applied.6
[16] DAL agreed to pay the monthly instalment and interest due on each payment date.7
3 Clause 2.2 of the loan agreements.
4 Clause 2.3 of the loan agreements.
5 Clause 4.1 of the loan agreements.
6 Clause 4.2 of the loan agreements.
7 Clause 4.1 of the loan agreements.
[17] It was an event of default under the loan agreements to fail to pay any amount due on its due date.8
[18] If an event of default occurred, the plaintiff had the rights and remedies available to it under cl 6.2 of the loan agreements. They included the right to demand immediate repayment of all of the moneys owed. “Moneys Owed” means all moneys of whatever nature owed or payable by DAL to the plaintiff under the loan agreements or the security documents. This was an accelerated payment clause; the full amount of the advances became payable, on demand, following default.
[19] The general provisions of the loan agreements are set out at cl 14 of the loan agreements and include:
(a)clause 14.1—which obliges DAL to pay all of the plaintiff’s legal costs on a solicitor and client basis.
(b)clause 14.2—which provided that no failure or delay by the plaintiff in exercising its rights operated as a waiver of those rights.
(c)clause 14.7—which provided that the loan agreements shall not be amended or varied except in writing signed by DAL, the defendant and the plaintiff.
[20]Finally, the loan agreements referred to the “Security Documents” which are:
(a)the GSA from DAL; and
(b)the guarantee from the defendant.
The GSA
[21] The GSA is in standard ADLS form. It was granted by DAL to the plaintiff to secure the advances made under the two loan agreements.
8 Clause 6.1 of the loan agreements.
[22]Clause D of the GSA provides that the GSA:
is composed of and incorporates this document (including all Schedules and all Annexure(s)) and the memorandum (the general terms), a copy of which is registered pursuant to section 209 of the Land Transfer Act 2017 under number 2023/4366
The Memorandum 2023/4366
[23] The Memorandum 2023/4366 (Memorandum) incorporates various terms into the GSA.
[24] The Memorandum defines “the secured moneys” as “all moneys which are now or at any time in the future owing by [DAL] or an accommodated person to [the plaintiff]” and “all advances, reasonable costs incurred and expenditure made for the… enforcement of any security interest”.9
[25] The Memorandum includes a covenant by DAL to pay the secured moneys at the times provided by any “secured agreement” and, to the extent that there is no such agreement, then upon demand.10 The loan agreements are secured agreements.11
[26] It is a default under the GSA, incorporated through the Memorandum, if DAL fails to pay any part of the secured moneys in accordance with the obligations to do so as set out in clause 3(a)(i) of the Memorandum.12
[27]Should there be a default, then the plaintiff may appoint a receiver.13
The guarantee
[28] The guarantee is in standard ADLS form. It provides that the defendant unconditionally and irrevocably guaranteed DAL’s obligations under the loan agreements and indemnified the plaintiff against DAL’s failure to meet its obligations under the loan agreements.
9 Clause 2(a) of the Memorandum.
10 Clause 3(a) of the Memorandum.
11 Clause 1(d)(ii) of the Memorandum.
12 Clause 19(a) of the Memorandum.
13 Clause 25(a)(i) of the Memorandum.
[29] The liability of the defendant under the guarantee was as a principal debtor, and not merely as a surety.14
[30] The guarantee provides that no obligation is affected by any enforcement taken under any other security, and the guarantee provides that it is a continuing guarantee.
[31] The defendant admits that he is bound as a guarantor and indemnifier under the guarantee.
Background
[32] The billboards were to be erected on properties owned by the plaintiff and operated by DAL under licensing agreements. DAL would sell advertising and obtain revenue from those advertising billboards. It would pay a licensing fee to the plaintiff.
[33] The plaintiff advanced funds to DAL under the loan agreements. The advances were made in two tranches: one of $285,000 on 28 March 2024, and one of $171,000 on 4 June 2024. The defendant accepts that those advances were made, in that amount.
[34] The first payment instalment date under both loan agreements was 1 August 2024.15
[35] It is not in dispute that the billboards have not been installed or delivered. The plaintiff does not know where they are (or if they even exist).
[36] With the first payment instalment date approaching, on 22 July 2024, DAL wrote to the plaintiff advising it that DAL was in breach of the arrangement to provide the electronic billboards. It proposed three options for discussion with the plaintiff. The options were:
(a)The plaintiff could enforce its current legal rights.
14 Clause 2.1 of the guarantee.
15 Clause 1.1 of the loan agreements.
(b)The plaintiff could agree to DAL continuing to erect both billboards, but cancelling the licenses.
(c)The plaintiff could cancel both the loan agreements and the licenses and DAL would return the advances.
[37] The email concluded by asking the plaintiff to consider its position and “come back to me when you are ready.”
[38] The defendant says that he then had a telephone conversation with Ryan Orchard of the plaintiff which concluded with the plaintiff agreeing to pause performance of the contract whilst the options he had proposed were considered. The date is disputed, but I find that it was on 22 July 2024, as the plaintiff emailed the defendant on that day referring to the telephone conversation.
[39] The defendant alleges that in that call the plaintiff agreed not to insist on DAL making the first payment that was then due on 1 August 2024.
[40] Mr Orchard wrote a file note following this discussion. It does not record that the plaintiff had agreed to pause performance under the clear terms of the loan agreements. It does record that the plaintiff would communicate with the defendant in writing and that the discussion was without prejudice.
[41] Mr Orchard says that he was seeking clarity around the position from the defendant and that the defendant was “not forthcoming” with information and “continued to deflect” the plaintiff’s requests for more details. That the plaintiff sought further information is unsurprising given the sizeable advance it had made to DAL and DAL’s advice that it was unable to perform.
[42] Mr Orchard positively states that he never agreed to pause performance of the loan agreements or to vary them. That is supported by his file note that recorded the plaintiff would communicate in writing. Which is further supported by clause 14.7 of the loan agreements that stated any amendment or variation had to be in writing. The
plaintiff was not pausing performance of the loan agreements based on one telephone call with the defendant.
[43] The parties then exchanged emails in the period 22–23 July 2024. During that exchange, the plaintiff sought clarity from DAL on various matters. The exchange was with the plaintiff’s legal counsel, Yolinda Freimond, who referred to the discussion with Mr Orchard earlier. She, accordingly, had knowledge of that discussion.
[44] No part of that exchange could be interpreted as a representation by the plaintiff that performance under the loan agreements was no longer required. Rather, further information was being sought.
[45] The plaintiff then wrote to DAL on 26 July 2024. The letter sought further information from DAL so that the options it had raised could be considered. Nowhere in that letter is there an acknowledgement that the plaintiff was pausing performance under the loan agreements.
[46] There is also in Mr Jaques’ affidavit in opposition acknowledgement that those discussions were non-binding. He said that in his discussion with Mr Orchard the overall situation was discussed, but that any comment from the plaintiff as to any preference was “only an indication, and non-binding”.
[47]Ultimately, on 31 July 2024 the plaintiff wrote to DAL. That email said:
I understand that you have informed us you cannot make the required payments tomorrow. However, pending management’s decision, I confirm that the first monthly payment of $16,250.82 representing 1st payments of both the license fees and loan advance monthly instalments are due tomorrow on 1 August 2024. Please make the payment to…
[48] The defendant can have been under no illusion on receipt of this email that the plaintiff had not paused performance of DAL’s obligations under the loan agreements. Rather, it specifically insisted on payment being made. That correspondence is unambiguous as to the plaintiff’s position regarding the payment that was due the following day.
[49] The defendant’s position on that correspondence was that it was just a “process” communication and that it did not represent the plaintiff’s actual or true position. That submission is not accepted. The communication was clear. The fact that it had come from the plaintiff’s legal counsel and not Mr Orchard is not relevant. The plaintiff expressed its position.
[50] DAL did not make the required first payment instalment on 1 August 2024, nor has it made any since.
[51] On 13 August 2024, the plaintiff appointed receivers to DAL. It was entitled to do that because DAL had failed to pay any part of the secured moneys in accordance with its obligations to do so under a secured agreement, the loan agreements.
[52]The next day, DAL wrote in response to that event stating:
Interesting that you have gone with enforcement rather than negotiation. You will have your liquidation and bankruptcy but you will not have your money going down this path.
[53] Then, in response to the receivers’ enquiries to DAL, it wrote to the receivers on 17 August 2024 noting that “Wilson Parking had the full right to place the company in receivership”.
[54]The plaintiff’s lawyers wrote to DAL on 20 August 2024. They recorded:
A payment of $16,250.82 was due on 1 August 2024, and this has remained unpaid as of the date of this letter. You are now in receivership. Due to this breach of the [loan agreements], our client is calling up the entire principal sums owed by you, being a total of $456,000.00, under clause 6.2.1 of the [loan agreements]…Please make immediate payment of the principal sum of
$456,000.00 to….
[55] This letter enacted the accelerated payment provision of the loan agreements. The effect was that, following this letter and the breach in failing to make the first payment instalment, the full amount of the advances was repayable.
[56] In response to that letter, DAL wrote to the plaintiff’s lawyers and stated that Mr Orchard had previously advised that the plaintiff did not wish to enforce its rights and that he would get back to DAL once it had decided which of the two options it
was considering the plaintiff would pursue. DAL said that it had acted in reliance on the plaintiff’s representations and negotiations in not making the payment on 1 August 2024 and that it considered that the receivership was invalid and could not be used as evidence of default.
[57] It is difficult to reconcile this position with the clear correspondence from the plaintiff to DAL following the alleged agreement on 22 July 2024 and the plaintiff’s later clear communications that it required the first payment instalment to be made on time. No expression from the plaintiff changed that, even if it had earlier advised that it was considering overall options to remedy DAL’s breach.
[58] The defendant alleges in his affidavit in opposition to summary judgment that it was not until 10 September 2024 that the plaintiff “for the very first time” that they would like a refund of the loan advances. No documentary support for this proposition is provided and it is directly contradicted by the exchanges set out above.
[59] Finally, on 17 September 2024, the plaintiff made a further formal demand for payment of the outstanding principal sum of $456,000. DAL acknowledged receipt of that demand on 23 September 2024.
[60]The plaintiff commenced these proceedings in October 2024.
The defences raised
[61]The defendant raises two grounds of opposition to the plaintiff’s claim.
[62] The defendant acknowledges the existence and binding effect of the loan agreements, the licensing agreements and the guarantee, and acknowledges the advances made by the plaintiff to DAL.
[63] He also acknowledges that DAL has not repaid the advances to the plaintiff and that, absent his grounds of opposition succeeding, he is obliged to pay those sums to the plaintiff as guarantor.
First ground of opposition—the obligation to make payment was paused by the plaintiff
[64] The defendant says that he discussed DAL’s default with Mr Orchard on behalf of the plaintiff and that as a result of that discussion he “understood” the outcome to be that the plaintiff had agreed to pause performance under the loan agreements, until the plaintiff decided how to proceed.
[65] While it is correct that the plaintiff did correspond with DAL in the period 22–26 July 2024, by email and letter, by 31 July 2024 the plaintiff had made it very clear that it required performance under the loan agreements. That could not be misinterpreted as anything other than a demand for performance.
[66] The file note of Mr Orchard does not assist the defendant’s argument. There is no communication from Mr Orchard that could be interpreted as confirming an agreement that DAL did not have to perform under the loan agreements. Rather, the plaintiff’s conduct is consistent with it insisting on its rights whilst trying to retrieve the difficult situation DAL had placed it in.
[67] The terms of the loan agreements also count against the argument that a verbal agreement bound the plaintiff. The loan agreements provide that no failure or delay in enforcing rights operates as a waiver of the plaintiff’s rights and that the loan agreements cannot be amended or varied except in writing signed by all parties.16 That did not occur. To the contrary, the plaintiff insisted on DAL meeting its obligations under the loan agreements.
[68] For his part, the defendant sought to characterise the 31 July 2024 letter from the plaintiff’s legal counsel as nothing more than the plaintiff going through a process and that he considered it did not mean anything as the plaintiff had “impliedly” paused performance as a result of his discussion with Mr Orchard.
[69] Somewhat uncharitably, he described Ms Freimond’s communications as nothing more than the “dog barking” and that he was “chased by the dog”.
16 Clauses 14.2 and 14.7 of the loan agreements.
[70] I do not accept that the defendant was entitled to ignore the plaintiff’s clear communications regarding its insistence on performance. I do not agree that the defendant was entitled to ignore the plaintiff’s legal counsel’s demand for performance and that he had some arrangement with Mr Orchard that somehow superseded those communications.
[71] The defendant argued that there is no evidence that Mr Orchard instructed Ms Freimond to issue the 31 July 2024 demand. However, he is not entitled to go behind those communications in order to pick and choose whose correspondence he accepted. The plaintiff’s position was made clear.
[72] The plaintiff later made two more demands for repayment of the advances, on 20 August 2024 and 17 September 2024. It is clear that the plaintiff exercised and continued to exercise its right to require repayment of the advances from DAL. The institution of these proceedings was a further demand for payment.
[73] Even supposing for a moment that the defendant had an arguable defence to the effect that the plaintiff agreed to pause performance, clause 3(a)(i) of the Memorandum makes it clear that to the extent that there is no agreement as to the time when payment under the loan agreements was due, then it was payable on demand.
[74] There are four demands made by the plaintiff, on 31 July 2024, 20 August 2024, 17 September 2024 and when the proceedings were commenced. None have been met. On any interpretation of a reasonable time for compliance, that time has passed and DAL is in breach.
[75] The Court’s approach on summary judgment is that it 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, for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable.17
17 Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at 341.
[76] In the end, the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.
[77] In the present case, whilst the evidence on its face is in conflict, on analysis I am satisfied that the defendant’s argument on the pausing of performance is not to be accepted. It is directly contradicted by contemporaneous documents as well as the sworn evidence of the plaintiff’s witness, Mr Orchard, whose evidence I accept. The defendant’s position lacks credibility. It is, ‘inherently improbable’.
[78] I find that the plaintiff did not agree to pause performance of the loan agreements and that DAL was obligated to comply with the terms of the loan agreements, including to make the first payment instalment on 1 August 2024. DAL did not do that and so it was in breach of the loan agreements from that date.
[79]This ground of opposition is not accepted.
Second ground of defence—the receivers were invalidly appointed
[80] The defendant also alleges that the plaintiff is not entitled to appoint receivers to DAL because the GSA which DAL granted to the plaintiff did not contain a provision entitling the appointment of receivers on default.
[81]This ground of opposition can be shortly dismissed.
[82] The GSA which was signed by DAL incorporated standard terms and conditions incorporated into it by reference to a document lodged at LINZ. The effect of that document was that its terms formed part of the GSA.
[83] The terms of the GSA incorporate the Memorandum, a copy of which is registered under s 209 of the Land Transfer Act 2017 under number 2023/4366. Those terms include a provision entitling the appointment of a receiver on default.18
18 Clause 25 of the Memorandum
[84] The defendant says that he was not aware that such terms were incorporated into the GSA.
[85] The plaintiff says that the defendant is a qualified lawyer who was actively involved in the negotiation and drafting of all of the agreements between the parties. The plaintiff says that the defendant was provided with numerous opportunities to clarify the documents or the transaction. Email correspondence exhibited by the plaintiff records that the defendant was substantially involved in the drafting of the documents and that he was content to do so, as he was a lawyer. He had an opportunity to take legal advice, but did not take it.
[86] An identical argument was rejected by the Court in Whitley v Ribble Ltd.19 The second respondent in that case argued that he did not “sign or assent” to the general terms and hence the appointment of receiver was invalid as the GSA did not include the power of appointment.
[87] The Court held that express reference to terms in another document is ordinarily sufficient to incorporate those terms into a contract.
[88] In BBX Financial Solutions Pty Ltd v Wallace, the Court of Appeal held, on the issue of incorporation of terms and referring to L’Estrange v Graucob:20
In cases in which the contract is contained in a railway ticket or other unsigned document, it is necessary to prove that an alleged party was aware, or ought to have been aware, of its terms and conditions. These cases have no application when the document has been signed. When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.
[89]It follows that the memorandum in this case is incorporated into the GSA.
19 Whitley v Ribble Ltd (formerly Ground Support (WGTN No 1) Ltd) [2017] NZHC 1884 at [13], [24]–[26].
20 BBX Financial Solutions Pty Ltd v Wallace [2011] NZCA 667 at [47]; citing L'Estrange v Graucob
[1934] KB 394 (CA).
[90] That being so, upon breach by DAL in failing to make the first payment instalment on 1 August 2024, the plaintiff had an entitlement to appoint a receiver under cl 25 of the Memorandum. It did that on 13 August 2024.
[91] The first payment instalment was “secured moneys”. DAL gave a covenant under the GSA to pay secured moneys in the manner provided by the loan agreements (being secured agreements under the GSA) and failure to do so entitled the plaintiff to appoint a receiver at any time after default under cl 25(a) of the Memorandum.
[92] The defendant developed in argument a further ground of opposition to the effect that the plaintiff had no entitlement to appoint a receiver on 13 August 2024 as the amounts due under the first payment instalment were not due on 1 August 2024 but would have been due at the earliest on 10 September 2024.
[93] For the reasons set out in the first ground of opposition, that is not accepted. The default occurred on 1 August 2024 and the plaintiff was entitled to exercise its rights following that.
[94]The appointment of the receivers was valid.
[95]This ground of opposition, therefore, fails.
Interest
[96] The plaintiff submits that it is entitled to interest to the date of judgment and an order that interest continues at the rate of 14 per cent per annum until the date of payment. That submission is not accepted.
[97] The statement of claim claims interest at the rate of 14 per cent per annum under cls 4.1 and 4.2 of the loan agreements. Clause 4.2 is the applicable clause and provides only for interest at the “higher interest rate” which is 14 per cent per annum, unless the plaintiff agrees that interest at the lower interest rate. There is no agreement in cl 4.1 to pay interest after judgment at the higher or lower interest rate.
[98] Clause 4.4 of the loan agreements provides for interest at a default rate which is 15 per cent above the interest rate, but only upon demand. There is no evidence of a demand for default interest under the loan agreements.
[99] Clause 4.4 of the loan agreements provides for the defendant to pay interest after as well as before judgment. However, interest is not claimed under clause 4.4, it is claimed under clause 4.2 and I decline to award interest after judgment at the contractual rate.
Result
[100]The defendant does not have an arguable defence to the plaintiff’s claim.
[101]The plaintiff is entitled to judgment as set out in its statement of claim.
[102]Judgment is granted in the plaintiff’s favour against the defendant as follows:
(a)Judgment for $456,000.00;
(b)Judgment for interest under the terms of the loan agreements at the interest rate of 14 per cent from the date of default of 1 August 2024 to the date of judgment;
(c)Judgment for costs of and incidental to this proceeding on an indemnity basis.
Associate Judge Cogswell
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