ENGLISH v FOLEY & ANOR [2019] NZHC 928 .

ENGLISH v FOLEY & ANOR [2019] NZHC 928 .

Summary judgment dismissed because there is an arguable factual and legal case that the parties had a common objective to secure the tender (creating an option) and that communications and emails could support an inchoate joint venture or fiduciary obligations; material factual disputes, incomplete discovery and the possibility of repleading make summary disposal inappropriate.

Citation
[2019] NZHC 928
Parties
Plaintiff: Conor Joseph English; First Defendant: Wayne Anthony Foley; Second Defendant: Laurel Hills Limited (formerly known as Ladies Mile Properties Limited)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 April 2019
Procedural Posture
High Court Civil Proceeding (property/development/agency/joint Venture) / Defendants' Application for Summary Judgment (interlocutory)
Outcome
Defendants' application for summary judgment dismissed.
Legal Topics
Summary Judgment, Agency, Joint Venture, Tender Process, Due Diligence, Option to Purchase, Fiduciary Duties
Contract Equity Property Civil Procedure Agency Fiduciary Law Summary Judgment Joint Venture +4 more

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Parties

Conor Joseph English

Plaintiff

Wayne Anthony Foley

First Defendant

Laurel Hills Limited (formerly known as Ladies Mile Properties Limited)

Second Defendant

Procedural Posture

High Court Civil Proceeding (property/development/agency/joint Venture) / Defendants' Application for Summary Judgment (interlocutory)

Legal Issues

  1. 1 Whether the defendant submitted the tender as agent for the plaintiff and Mr Holtzman
  2. 2 Whether a joint venture (including an inchoate joint venture) existed between plaintiff, Mr Holtzman and defendant to secure the tender
  3. 3 Whether equitable/fiduciary duties arose between the parties in the preliminary stage

Ratio Decidendi

Summary judgment dismissed because there is an arguable factual and legal case that the parties had a common objective to secure the tender (creating an option) and that communications and emails could support an inchoate joint venture or fiduciary obligations; material factual disputes, incomplete discovery and the possibility of repleading make summary disposal inappropriate.

Court Disposition

Defendants' application for summary judgment dismissed.

Orders

  • Defendants' application for summary judgment dismissed.
  • If counsel wish to be heard on costs, file memoranda not more than three pages within five working days of release of this judgment (by Tuesday 7 May 2019).