MADAGASCAR (NO. 3) 2013 LTD v PAULSEN [2016] NZHC 553

MADAGASCAR (NO. 3) 2013 LTD v PAULSEN [2016] NZHC 553

Summary judgment was dismissed because the defendants raised arguable defences that attack the validity of the underlying sale and loan transactions such that the operation and effect of the guarantee, including the no-set-off and preservation clauses, could be impeached; plaintiff failed to satisfy the court that no defence existed and summary determination was therefore inappropriate.

Citation
[2016] NZHC 553
Parties
Plaintiff: Madagascar (No.3) 2013 Limited; First Defendant: Brent Ewen Paulsen; Second Defendant: Christine Mary Paulsen
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 April 2016
Procedural Posture
Breach of Contract / Summary Judgment Application
Outcome
Application for summary judgment dismissed
Legal Topics
Summary Judgment, No Set Off Clause, Guarantee Enforcement, Set Off and Counterclaim, Contract Rescission, Misrepresentation, Contractual Remedies Act 1979, Fair Trading Act 1986
Contract Law Civil Procedure Equity Consumer Protection Summary Judgment No Set Off Clause Guarantee Enforcement Set Off and Counterclaim +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 4 Authorities cited 23 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Madagascar (No.3) 2013 Limited

Plaintiff

Brent Ewen Paulsen

First Defendant

Christine Mary Paulsen

Second Defendant

Procedural Posture

Breach of Contract / Summary Judgment Application

Legal Issues

  1. 1 Whether the deed of guarantee prevents guarantors from raising set-off or counterclaims against liability under the guarantee
  2. 2 Whether a guarantee can impose obligations on guarantors broader than the borrower's obligations under the underlying loan agreement
  3. 3 Whether summary judgment is appropriate where defendants assert vitiating conduct that impeaches the underlying transactions and the guarantee

Ratio Decidendi

Summary judgment was dismissed because the defendants raised arguable defences that attack the validity of the underlying sale and loan transactions such that the operation and effect of the guarantee, including the no-set-off and preservation clauses, could be impeached; plaintiff failed to satisfy the court that no defence existed and summary determination was therefore inappropriate.

Court Disposition

Application for summary judgment dismissed

Orders

  • Application for summary judgment dismissed
  • Costs reserved