SMITH & STOKES v NOBLE INVESTMENTS LTD [2017] NZHC 2885

SMITH & STOKES v NOBLE INVESTMENTS LTD [2017] NZHC 2885

Counterclaimants (NIL and AFL) were not struck out against Philpott and Lindsay because, assuming pleaded facts true, claims were not clearly untenable despite serious evidentiary and pleading deficiencies; GBF's ninth cause of action (challenge to security sharing) struck out and summary judgment would have been...

Source-derived case information.

Citation
[2017] NZHC 2885
Parties
Plaintiffs and First Counterclaim Defendants: Gregory Robert Smith and Colin Peter Stokes; First Defendant and Counterclaim Plaintiff: Noble Investments Limited; Second Defendant and Counterclaim Plaintiff: Applefields Limited; Third Defendant: Justin William Prain; Fourth Defendant: Cardno (NZ) Limited; Fifth Defendant: Gold Band Finance Limited; Sixth Defendant: Delta Utility Services Limited; Second Counterclaim Defendant: Shayne Philpott; Second Counterclaim Defendant: New Zealand Trustee Services Limited; Second Counterclaim Defendant: Faye Unice Richardson; Second Counterclaim Defendant: Burnside Trustees Limited; Third Counterclaim Defendant: Stuart Ellesmere Lindsay; Third Counterclaim Defendant: Julie Ivonne Lindsay
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 November 2017
Procedural Posture
Civil High Court / Interlocutory Applications (strike Out and Summary Judgment)
Outcome
Mixed: strike out and summary judgment orders entered in part; strike out dismissed for applications by Philpott and Lindsay; GBF succeeded on ninth cause (struck out) and obtained summary judgment on tenth; Delta obtained summary judgment on seventh, eighth and ninth causes; other strike out applications dismissed...
Legal Topics
Caveats, Mortgagee Sale, Summary Judgment, Strike Out, Assignment of Mortgage, Redeem Mortgage, Deceit, Security Sharing Deed, Resource Consent, Causation
Contract Law Property Law Civil Procedure Equity Trusts Tort Caveats Mortgagee Sale +8 more

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Parties

Gregory Robert Smith and Colin Peter Stokes

Plaintiffs and First Counterclaim Defendants

Noble Investments Limited

First Defendant and Counterclaim Plaintiff

Applefields Limited

Second Defendant and Counterclaim Plaintiff

Justin William Prain

Third Defendant

Cardno (NZ) Limited

Fourth Defendant

Gold Band Finance Limited

Fifth Defendant

Delta Utility Services Limited

Sixth Defendant

Shayne Philpott

Second Counterclaim Defendant

New Zealand Trustee Services Limited

Second Counterclaim Defendant

Faye Unice Richardson

Second Counterclaim Defendant

Burnside Trustees Limited

Second Counterclaim Defendant

Stuart Ellesmere Lindsay

Third Counterclaim Defendant

Julie Ivonne Lindsay

Third Counterclaim Defendant

Procedural Posture

Civil High Court / Interlocutory Applications (strike Out and Summary Judgment)

Legal Issues

  1. 1 Whether counterclaims and causes of action disclose reasonably arguable causes of action
  2. 2 Whether 'Further Consent' as defined in contracts was obtained and triggered clause 21.5 obligations
  3. 3 Whether pleadings give sufficient particulars of consents, approvals and causation

Ratio Decidendi

Counterclaimants (NIL and AFL) were not struck out against Philpott and Lindsay because, assuming pleaded facts true, claims were not clearly untenable despite serious evidentiary and pleading deficiencies; GBF's ninth cause of action (challenge to security sharing) struck out and summary judgment would have been entered because GBF's arrangements were lawful security-sharing/trust arrangements and did not breach s84; GBF granted summary judgment on tenth cause because plaintiffs failed to tender redemption amount (full secured debt) and thus could not succeed; Delta granted summary judgment on seventh, eighth and ninth causes because deceit and related claims were unsupported by...

Court Disposition

Mixed: strike out and summary judgment orders entered in part; strike out dismissed for applications by Philpott and Lindsay; GBF succeeded on ninth cause (struck out) and obtained summary judgment on tenth; Delta obtained summary judgment on seventh, eighth and ninth causes; other strike out applications dismissed...

Orders

  • Application to strike out by Shayne Philpott dismissed
  • Application to strike out by Stuart Lindsay dismissed