CJ COWAN, JC COWAN AND BVOND TRUST LIMITED AS TRUSTEES OF THE BLANDA TRUST V KAREN ANNE STAPLES (NEE DURNEY) AND ANOR HC NAP CIV-2010-441-181

CJ COWAN, JC COWAN AND BVOND TRUST LIMITED AS TRUSTEES OF THE BLANDA TRUST V KAREN ANNE STAPLES (NEE DURNEY) AND ANOR HC NAP CIV-2010-441-181

Summary judgment against Mr Staples was dismissed because there existed a real and material factual dispute whether the plaintiffs accepted his undertaking and whether plaintiffs provided the necessary consideration (forbearance/adjournment) to make the undertaking enforceable; the defendant raised an arguable defence and the email's unsigned form raised statutory signature issues. Summary judgment against Ms Durney was granted because she accepted judgment could be entered against her and the 14% penalty interest was not oppressive in the circumstances.

Citation
openlaw-8b50fdb9_498b_448c_bbc9_4e8e636c5000.pdf
Parties
Plaintiff: Christopher James Cowan; Plaintiff: Jocelyn Carol Cowan; Plaintiff: BVOND Trust Limited as Trustees of the Blanda Trust; First Defendant: Karen Anne Staples (nee Durney); Second Defendant: Chester Otis Staples
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 August 2010
Procedural Posture
Civil Summary Judgment Application / Hearing and Judgment on Summary Judgment; Interlocutory Listing for Substantive Trial
Outcome
Application for summary judgment against second defendant (Chester Staples) dismissed; application for summary judgment against first defendant (Karen Anne Staples (nee Durney)) granted.
Legal Topics
Summary Judgment, Forbearance to Sue as Consideration, Contract of Guarantee, Mortgagee Enforcement (s119 Pla), Signature Requirement for Guarantees (s27 Pla), Oppressive Interest Rates (cccf Act)
Property Law Contract Law Guarantees and Indemnities Civil Procedure Consumer Credit Law Electronic Transactions Summary Judgment Forbearance to Sue as Consideration +4 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 5 Authorities cited 11 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Christopher James Cowan

Plaintiff

Jocelyn Carol Cowan

Plaintiff

BVOND Trust Limited as Trustees of the Blanda Trust

Plaintiff

Karen Anne Staples (nee Durney)

First Defendant

Chester Otis Staples

Second Defendant

Procedural Posture

Civil Summary Judgment Application / Hearing and Judgment on Summary Judgment; Interlocutory Listing for Substantive Trial

Legal Issues

  1. 1 Whether Mr Staples' email undertaking created an enforceable contractual obligation or guarantee
  2. 2 Whether plaintiffs provided sufficient consideration (forbearance/adjournment) to support the undertaking
  3. 3 Whether there was acceptance of the alleged undertaking by the plaintiffs

Ratio Decidendi

Summary judgment against Mr Staples was dismissed because there existed a real and material factual dispute whether the plaintiffs accepted his undertaking and whether plaintiffs provided the necessary consideration (forbearance/adjournment) to make the undertaking enforceable; the defendant raised an arguable defence and the email's unsigned form raised statutory signature issues. Summary judgment against Ms Durney was granted because she accepted judgment could be entered against her and the 14% penalty interest was not oppressive in the circumstances.

Court Disposition

Application for summary judgment against second defendant (Chester Staples) dismissed; application for summary judgment against first defendant (Karen Anne Staples (nee Durney)) granted.

Orders

  • Judgment entered in favour of the plaintiffs against Karen Anne Staples (nee Durney) for principal $68,307.00 and interest at 14% per annum from 15.10.2009 to 24.08.2010 (313 days) $8,200.58 total $76,507.58
  • Application for summary judgment against Chester Otis Staples dismissed; substantive proceeding against him listed for call at 10.00 am on 22 September 2010