MURRAY v BAXTER [2019] NZHC 2444

MURRAY v BAXTER [2019] NZHC 2444

The Variation, read with the SPA and loan agreement, incorporated an express contractual exclusion (and by clear implication continued exclusion) of any right of set-off; therefore the defendants, as guarantors, had no available set-off defence and summary judgment awarding the undisputed debt was appropriate; the defendants failed to show a probable and substantial miscarriage of justice warranting refusal of summary judgment or a stay of execution.

Citation
[2019] NZHC 2444
Parties
Plaintiff/applicant: EMMA MARY MURRAY; Plaintiff/applicant: WAYNEDEREK ANDERSON; Plaintiff/applicant: FOUR S TRUST LIMITED as trustees of the Four S Trust; Plaintiff/applicant: CRAIG ROBERT WILLIAM BRYDON; Plaintiff/applicant: DARELLE JANISE BRYDON; Plaintiff/applicant: JEFFREY HOLLIS STRATTON; Plaintiff/applicant: S.A.S. TRUSTEE COMPANY LIMITED; Plaintiff/applicant: TRUSTS LIMITED; First Defendant/first Respondent: ANTHONY CHANNON BAXTER; Second Defendant/second Respondent: WILLY LEFERINK
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 September 2019
Procedural Posture
Civil Debt Recovery / Summary Judgment Application (judgment Granted)
Outcome
Summary judgment granted for plaintiffs against defendants
Legal Topics
Summary Judgment, Guarantee Interpretation, Working Capital Adjustment, Exclusion of Set Off, Stay of Execution, Costs (solicitor/client)
Contract Law Guaranty Civil Procedure Equitable Set Off Security for Debt Summary Judgment Guarantee Interpretation Working Capital Adjustment +3 more

Case Brief

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Parties

EMMA MARY MURRAY

Plaintiff/applicant

WAYNEDEREK ANDERSON

Plaintiff/applicant

FOUR S TRUST LIMITED as trustees of the Four S Trust

Plaintiff/applicant

CRAIG ROBERT WILLIAM BRYDON

Plaintiff/applicant

DARELLE JANISE BRYDON

Plaintiff/applicant

JEFFREY HOLLIS STRATTON

Plaintiff/applicant

S.A.S. TRUSTEE COMPANY LIMITED

Plaintiff/applicant

TRUSTS LIMITED

Plaintiff/applicant

ANTHONY CHANNON BAXTER

First Defendant/first Respondent

WILLY LEFERINK

Second Defendant/second Respondent

Procedural Posture

Civil Debt Recovery / Summary Judgment Application (judgment Granted)

Legal Issues

  1. 1 Whether defendants can assert a set-off/ counterclaim based on a working capital adjustment
  2. 2 Whether contractual provisions (SPA and Variation) exclude equitable or contractual set-off
  3. 3 Whether summary judgment should be refused or execution stayed as a matter of discretion

Ratio Decidendi

The Variation, read with the SPA and loan agreement, incorporated an express contractual exclusion (and by clear implication continued exclusion) of any right of set-off; therefore the defendants, as guarantors, had no available set-off defence and summary judgment awarding the undisputed debt was appropriate; the defendants failed to show a probable and substantial miscarriage of justice warranting refusal of summary judgment or a stay of execution.

Court Disposition

Summary judgment granted for plaintiffs against defendants

Orders

  • Judgment for plaintiffs against the defendants in the sum of USD 713,428.36
  • Interest to run on USD 713,428.36 from 1 March 2019 until payment at the contractual rate of 15 per cent per annum