KINGSTON & ANOR V BRIAN ROBERT ELLIS HC AK CIV-2004-404-2412

KINGSTON & ANOR V BRIAN ROBERT ELLIS HC AK CIV-2004-404-2412

Summary judgment was improperly entered because material and genuine factual disputes existed (receipt of terms, authority for admission, alleged waiver of Saddik fees) that should have proceeded to hearing; Clause 1's provision creating personal liability for a director was properly characterised as a guarantee (not an indemnity) and was unenforceable against Kingston because it was not in writing and signed as required by s 2 Contracts Enforcement Act 1956; accordingly the District Court judgment and related orders (including referral for cost revision and costs award) were set aside and the matter remitted for substantive hearing.

Citation
openlaw-5264f619_86b2_4e12_9132_4de2d3391b5a.pdf
Parties
First Appellant: Kit Kingston; Second Appellant: New Zealand Merchant Finance Group Limited; Respondent: Brian Robert Ellis
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 November 2007
Procedural Posture
Appeal Pursuant to S 72 District Courts Act 1947 / High Court Appeal; Reserved Judgment Delivered on Appeal (judgment)
Outcome
Appeal allowed in part; summary judgment against Kit Kingston set aside; District Court orders (including costs and referral to ADLS) quashed; matter remitted to District Court for hearing of the substantive proceeding; appellant awarded costs and to file memorandum on costs according to timetable.
Legal Topics
Summary Judgment, Guarantee Vs Indemnity, Contracts Enforcement Act 1956 S 2, Costs Revision (adls), Authority of Solicitors to Admit Liability, Affidavit Credibility and Disputed Facts
Civil Procedure Contract Law Legal Costs Solicitor Client Retainer Law Evidence (affidavits) Summary Judgment Guarantee Vs Indemnity Contracts Enforcement Act 1956 S 2 +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Kit Kingston

First Appellant

New Zealand Merchant Finance Group Limited

Second Appellant

Brian Robert Ellis

Respondent

Procedural Posture

Appeal Pursuant to S 72 District Courts Act 1947 / High Court Appeal; Reserved Judgment Delivered on Appeal (judgment)

Legal Issues

  1. 1 Whether the director (Kit Kingston) assumed personal liability for legal fees rendered to companies he controlled
  2. 2 Whether the terms of engagement created a guarantee or an indemnity
  3. 3 Whether summary judgment was appropriate given disputed factual issues on affidavits

Ratio Decidendi

Summary judgment was improperly entered because material and genuine factual disputes existed (receipt of terms, authority for admission, alleged waiver of Saddik fees) that should have proceeded to hearing; Clause 1's provision creating personal liability for a director was properly characterised as a guarantee (not an indemnity) and was unenforceable against Kingston because it was not in writing and signed as required by s 2 Contracts Enforcement Act 1956; accordingly the District Court judgment and related orders (including referral for cost revision and costs award) were set aside and the matter remitted for substantive hearing.

Court Disposition

Appeal allowed in part; summary judgment against Kit Kingston set aside; District Court orders (including costs and referral to ADLS) quashed; matter remitted to District Court for hearing of the substantive proceeding; appellant awarded costs and to file memorandum on costs according to timetable.

Orders

  • Judgment entered by District Court against Kit Kingston set aside
  • All orders made by the District Court in relation to the application including the costs award are quashed