MCDIARMID & ORS V CRUM & ANOR HC WHA CIV-2012-488-59

MCDIARMID & ORS V CRUM & ANOR HC WHA CIV-2012-488-59

The plaintiff did not establish that there was no reasonable ground of defence: there was insufficient evidence that Mr Scotland authorised Mr Crum or that his conduct gave rise to a reasonable assumption of authority; because apparent authority was a question of fact and an arguable defence existed, summary judgment was refused.

Citation
openlaw-d808ab08_7e0b_40b7_9e70_cf0e4ae9a5d5.pdf
Parties
Plaintiff: Malcolm Joseph McDiarmid; Plaintiff: Joseph McDiarmid; Plaintiff: Tomeike McDiarmid; Plaintiff: H & A Trustee Company Limited; First Defendant: Matthew John Crum; Second Defendant: Ian Philip Scotland
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 July 2012
Procedural Posture
Interlocutory Application for Summary Judgment / Summary Judgment Hearing (interlocutory)
Outcome
Application for summary judgment dismissed
Legal Topics
Summary Judgment, Apparent Authority, Settlement Agreement, Agency by Estoppel, Weathertight Homes Resolutions Services Act 2006, Inference of Authority, Discontinuance
Civil Procedure Contract Agency Statutory Scheme Weathertight Homes Summary Judgment Apparent Authority Settlement Agreement Agency by Estoppel +3 more

Case Brief

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Parties

Malcolm Joseph McDiarmid

Plaintiff

Joseph McDiarmid

Plaintiff

Tomeike McDiarmid

Plaintiff

H & A Trustee Company Limited

Plaintiff

Matthew John Crum

First Defendant

Ian Philip Scotland

Second Defendant

Procedural Posture

Interlocutory Application for Summary Judgment / Summary Judgment Hearing (interlocutory)

Legal Issues

  1. 1 Whether Mr Scotland authorised Mr Crum to sign a settlement agreement on his behalf
  2. 2 Whether the plaintiffs established there was no reasonable ground of defence such that summary judgment under r 12.2 should be entered against Mr Scotland
  3. 3 Whether the conduct relied on by the plaintiffs gave rise to apparent authority or agency by estoppel so as to bind Mr Scotland to the settlement

Ratio Decidendi

The plaintiff did not establish that there was no reasonable ground of defence: there was insufficient evidence that Mr Scotland authorised Mr Crum or that his conduct gave rise to a reasonable assumption of authority; because apparent authority was a question of fact and an arguable defence existed, summary judgment was refused.

Court Disposition

Application for summary judgment dismissed

Orders

  • Application for summary judgment dismissed
  • Costs reserved; Scale 2B identified as appropriate for assessment