NEW ZEALAND BLOODSTOCK FINANCE & LEASING LTD v JONES [2020] NZHC 1233

NEW ZEALAND BLOODSTOCK FINANCE & LEASING LTD v JONES [2020] NZHC 1233 [5 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1822[2020] NZHC 1233BETWEEN NEW ZEALAND BLOODSTOCKFINANCE & LEASING LIMITEDPlaintiffAND GREGORY JOHN JONESDefendantHearing: 26 May 2020Appearances: F A King and M A Dempster for the plaintiffG J Jones in personJudgment: 5 June 2020JUDGMENT OF JAGOSE JThis judgment was delivered by me on 5 June 2020 at 11.00am.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Party:McKenna King Limited, HamiltonG J Jones, Auckland[1] The plaintiff ("NZ Bloodstock") seeks summary judgment on its claims againstMr Jones in the amount of $431,632.22 (plus interest and solicitor-client costs), inrepayment of credit provided to him in connection with his bloodstock business.Mr Jones opposes on grounds, predominantly, he has claims to equitable set-offexceeding the repayment sought. This was the entire focus of his substantivesubmissions at hearing of NZ Bloodstock's application (although he reserved hisopposition's other grounds for argument at a sought adjourned hearing).Background[2] Mr Jones is a barrister, having practiced in civil litigation for some 40 yearsand specialising in insurance-related litigation. He also is involved in thoroughbredbreeding businesses of his own and with others. In his own business, he had acquiredbrood mares on lease to purchase agreements with NZ Bloodstock, for repayment overperiods of time. Those transactions completed, he then sought credit advances fromNZ Bloodstock.[3] NZ Bloodstock entered into a standard form contract for current advances withMr Jones on 23 May 2016 (the "advances contract"). Its initial disclosure sectionidentified advances available to a limit of $200,000, at 10 per cent interest on theunpaid daily balance, for payment "[i]n full on the 30th June 2017 or upon demand".That date was the contract's "Review Date", NZ Bloodstock being entitled then "at itssole discretion [to] terminate the Facility extend it or vary it as it thinks fit", subject toNZ Bloodstock's rights to terminate the contract "upon demand" and to receiverepayment in full, irrespective of the review date or extension or variation.NZ Bloodstock's provision of further or other advances, whether or not exceeding thelimit, would be made on the same terms.[4] The advances were secured over Mr Jones' rights in relation to identifiedbloodstock, and others acquired with the advances, and their progeny and proceeds. Inconsideration for NZ Bloodstock's provision of the credit, while not repaid, Mr Jonesonly would offer bloodstock for sale through a company related to NZ Bloodstock,which had no obligation to include the bloodstock in any particular sale.NZ Bloodstock also was entitled to deduct any money Mr Jones owed from proceedsof sale of his bloodstock. Mr Jones was to pay "[a]ll legal fees (on a solicitor-clientbasis) and other fees and expenses" incurred by NZ Bloodstock in enforcing thecontract.[5] By the end of 2016, Mr Jones had obtained well over $400,000 in advancesfrom NZ Bloodstock to acquire interests in some ten horses. After application ofproceeds from sales in the first six months of 2017, he owed NZ Bloodstock just lessthan $290,000. He acquired interests in another three horses by the end of 2017,bringing his liability to NZ Bloodstock under the advances contract to slightly lessthan $340,000.[6] On 10 October 2017, Mr Jones also entered into a lease to purchase agreementwith NZ Bloodstock in relation to his acquisition of an interest in another horse for$44,000, for partial annual repayments each July, and the residue on 10 October 2020or on earlier termination, secured again over the horse and its progeny and proceeds(the "lease"). Under the lease, Mr Jones was to "indemnify" NZ Bloodstock for itscosts and expenses incurred under the lease, including "in recovering any moniessecured hereunder".[7] Mr Jones' dealings with NZ Bloodstock had been with its finance manager,Ross Gwyn. In January 2018 – on the eve of NZ Bloodstock's national yearling salesseries – Mr Jones met with NZ Bloodstock's managing director, Andrew Seabrook.Mr Seabrook said NZ Bloodstock would not "lend [Mr Jones] more money", andrecommended Mr Jones sell his share in an identified horse "to pay [his] debts".No further reductions then were made to Mr Jones' liability.[8] At the end of August 2018, Mr Gwyn retired from NZ Bloodstock. On 11September 2018, NZ Bloodstock's new finance manager, Eion Fraser, contactedMr Jones "regarding [his] accounts with NZB and [his] plan going forward". On13 September 2018, Mr Jones responded:Well is it possible for NZB to consider an overall extension on the facility fora [y]ear to allow current debt s to be paid provided cash flow is ok for the next12 months as well.i touched on this with ross but it didn't get much tractionby the sound of it yet it's the only way to keep the business going forward.For you the issue is cashflow to cover the interest and security.i am a good andactive client and the business needs another 2 -3 years to find it's feet.i amonly in year 3-4.I never got the chance to present the proposition to nzb and so delaying th eprogress of that has left me stuffed with bookings to stallions so the wholething is precarious at the moment. [I'd] like to think about sending a mare toaus and perhaps bringing one back-all more business. Currently I am stitchedfor cash but a bit of room would solve that -you have all the figures.Can wetalk urgently about this. I am holding back on services as I said.[9] On 17 September 2018, Mr Jones again indicated he was "considering flyingone mare to aus-would nzb have in mind covering this sort of thing in a general facilityfor the next year[?]". Mr Fraser responded the same day NZ Bloodstock could "extend[his] current advance facility for another 12 months, with settlement of the accountdue on 20th September 2019, however there will be no further advance of funds". Withreference to sending mares to Australia for the breeding season, expenses would haveto be paid by Mr Jones in advance: "unfortunately NZB will not be extending anyfurther credit. This is a firm directive from the NZB board".[10] Mr Fraser also specified conditions for the extension of time, aimed at reducingMr Jones' debt to NZB. Mr Jones rejected those conditions, saying "[i]t is the leastprofitable way to deal with the situation and will eliminate the business completely.Any business relationship such as ours exists on discussion not ultimatums".His correspondence continued over the next week, seeking other ways to address hisconcerns. Mr Fraser indicated NZ Bloodstock had its own concerns about its securityover the horses, and ultimately reinforced its 17 September 2018 offer (with a minorvariation), for acceptance by 28 September 2018.[11] Mr Jones again rejected the offer, reinforcing his preference to "work togetheras business partners with a five year plan", and subsequently for NZ Bloodstock "tooffer funding for around $150k with the provision of adequate security and cashflows". Mr Fraser explained those presently were not feasible, and repeatedNZ Bloodstock's security concerns, which Mr Jones refused to answer. Mr Jones thenobjected to NZ Bloodstock applying proceeds from sales and insurance of his horsesto reduction of his debt, indicating he would issue proceedings.[12] NZ Bloodstock referred Mr Jones to its solicitors, who accepted by letter of25 March 2019 there was a question to be determined in relation to involuntaryapplication of insurance proceeds in reduction of Mr Jones' debt, invited himvoluntarily to do so as a mark of his intention "to genuinely attempt to repay all debtsto NZB", and otherwise indicated demand would issue for repayment, for subsequentenforcement if necessary. Mr Jones responded on 27 March 2019, saying:[T]the only common-sense interpretation of the arrangement [Mr Gwyn andhe] made was that the facility would continue (but I agree not necessarilyincrease) over a period of three to four years while my business developed.I'm sure Mr Gwyn would also acknowledge that this was the driving forcebehind the arrangement we had as he stated, for example, that I was going tobe involved in the breeding industry "for a long time" which was of coursemy intention as well.[13] By letter of 28 March 2019, NZ Bloodstock's solicitors demanded repaymentof $422,004.70, comprising $364,648.18 under the advances contract and $57,356.52under the lease as at 10 October 2018. By letter of 12 April 2019, the solicitorsformally revised the advances contract demand to $369,800.22 as at 31 March 2019,taking into account subsequent proceeds from sale and interest. By separate letter ofthe same date, the solicitors gave Mr Jones notice of default in due payments of$22,718.08 under the lease, unless remedied giving rise to all payments under theagreement (amounting to $61,832.00) falling due, as well as on 12 April 2019 givinghim statutory notice of default in the same amount.[14] NZ Bloodstock's claim for judgment on Mr Jones' debts, together with itsapplication for summary judgment of that claim, was filed in early September 2019and later served on Mr Jones. Mr Jones opposed the summary judgment applicationon the particularised grounds:(a) NZ Bloodstock was not entitled to recover the full amount owing underthe lease;(b) NZ Bloodstock failed to make all necessary initial disclosure toMr Jones;1(c) NZ Bloodstock acted oppressively in exercising its rights under boththe advances contract and the lease;21 Credit Contracts and Consumer Finance Act 2003, s 17.2 Section 120(b).(d) Mr Jones had a claim to equitable set-off equalling or exceeding theamounts claimed by NZ Bloodstock; and(e) the Court otherwise should exercise its discretion not to enter judgment.The foundation for Mr Jones' opposition is an alleged wide-ranging conspiracy in atleast the thoroughbred industry to harm his bloodstock business (but extending toallegations against his former wife, the firm in which he formerly was partner, and aninsurance company), of which NZ Bloodstock's actions in enforcement of hisliabilities to it are said to be a part.Relevant law—summary judgment[15] On a plaintiff's application for summary judgment, "[t]he court may givejudgment against a defendant if the plaintiff satisfies the court that the defendant hasno defence to a cause of action in the statement of claim".3 Judgment may summarilybe granted if there is no good reason for trial of the plaintiff's claim:4If the defendant does not particularise his defence so as to show an issueof fact which ought to be tried, or if the plaintiff's pleading, whether or notsupplemented by an affidavit by the defendant, does not show an arguablequestion of law worthy of trial, the plaintiff's statement of claim verified byor for him and the sworn belief that there is no defence will be sufficient todischarge the onus on him. If a defence is not evident on the plaintiff'spleading I am of opinion that if the defendant wishes to resist summaryjudgment he must file an affidavit raising an issue of fact or law and givereasonable particulars of the matters which he claims ought to be put in issue.In this way a fair and just balance will be struck between a plaintiff's right tohave his case proceed to judgment without tendentious delay and adefendant's right to put forward a real defence. In this context the words "no defence" have reference to the absence of anyreal question to be tried. That notion has been expressed in a variety of ways,as for example, no bona fide defence, no reasonable ground of defence, nofairly arguable defence, no fairly arguable defence. On this the plaintiff isto satisfy the Court; he has the persuasive burden. Satisfaction here indicatesthat the Court is confident, sure, convinced, is persuaded to the point of belief,is left without any real doubt or uncertainty.Where the only arguable defence is a question of law which is clearcut anddoes not require findings on disputed facts or the ascertainment of further facts3 High Court Rules 2016, r 12.2.4 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3–4 (citations omitted).the Court should normally decide it on the application to strike out a claim ordefence before trial on the ground that it raises no cause of action or nodefence[;] where the defence raises questions of fact upon which theoutcome of the case may turn it will not often be right to enter summaryjudgment. There may however be cases in which the Court can be confident –that is to say, satisfied – that the defendant's statements as to matters of factare baseless. [There is a] need to scrutinise affidavits, to see that they pass thethreshold of credibility .Nonetheless, the onus is on the plaintiff throughout.5—equitable set-off[16] A cross-claim to a related equitable set-off will afford a defence, if it is "unjustthat a claimant should seek to enforce a claim without giving credit for a related cross-claim which the defendant had against him".6 The presently-accepted principle is:7The defendant may set-off a cross-claim which so affects the plaintiff's claimthat it would be unjust to allow the plaintiff to have judgment without bringingthe cross-claim to account. The link must be such that the two are in effectinterdependent: judgment on one cannot fairly be given without regard to theother; the defendant's claim calls into question or impeaches the plaintiff'sdemand. It is neither necessary, nor decisive, that claim and cross-claim ariseout of the same contract.Similarly:8The cross-claim must so affect the plaintiff's claim that it would be unjust toallow the plaintiff to have judgment without bringing the cross-claim toaccount. The link must be such that the two are in effect interdependent.Procedural matters[17] Mr Jones' opposition is supported by his affidavit of 13 November 2019.He filed a further affidavit of 14 February 2020, in support of his 14 February 2020application to file further affidavit evidence and to require the attendance of peoplefor examination. NZ Bloodstock's counsel, Fraser King, objected to admission of5 Pemberton v Chappell, above n 4, at 3; MacLean v Stewart (1997) 11 PRNZ 66 (CA) at 69.6 BICC Plc v Burndy Corp [1985] Ch 232 (CA) at 250–251, cited with approval in Property VenturesInvestments Ltd v Regalwood Holdings Ltd [2010] NZSC 47, [2010] 3 NZLR 231 at [64].7 Grant v NZMC Ltd [1989] 1 NZLR 8 (CA) at 12–13, approved in Property Ventures InvestmentsLtd v Regalwood Holdings Ltd, above n 6, at [69].8 Body Corporate 162791 v Gilbert [2015] NZCA 185, [2015] 3 NZLR 601 at [69], citing Grant vNZMC Ltd, above n 7, at 12–13 and Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1NZLR 309 (CA) at [3]–[12], approved in Gilbert v Body Corporate 162791 [2016] NZSC 61,[2018] 1 NZLR 1 at [54].significant portions of the affidavits, as well as of the further affidavit and oralevidence sought.[18] By judgment dated 6 March 2020, Peters J considered (as earlier had Gault Jin case management)9 any objections to the affidavits' content should have to bedetermined at the application's hearing, for which she granted Mr Jones leave to relyon his February 2020 affidavit.10 She granted him leave also to file an affidavit ofAdrian Clark.11 (In the event, the further affidavit appeared not to be forthcoming,meaning Mr Jones sought Mr Clark also be required to attend for examination.) Shenoted people could be required to attend before the court for examination, if requestedbut refusing to make affidavits as to information relevant to the proceeding.12 Butwithout evidence of either request or refusal, or identification of relevant information,that aspect of the application could not then be granted.13 She granted Mr Jones leaveto "pursue this point" with the necessary evidence of request and refusal, bycommunication with the case officer.14 Mr Jones' affidavit sworn 7 May 2020 providedsuch evidence; his memorandum of the next day sought a brief hearing. It is unclear ifthe matter was raised with the case officer.[19] Mr Jones instead applied on 19 May 2020 to dismiss or stay NZ Bloodstock'ssummary judgment application, on grounds:(a) the summary judgment procedure was inappropriate because he allegedNZ Bloodstock's fraud;(b) there was a genuine conflict of evidence between the parties, of whichexpert evidence was likely to form a significant part of the dispute; and(c) NZ Bloodstock's application was oppressive and brought in bad faith.In a supporting memorandum, Mr Jones contended there was sufficient evidence onwhich to argue NZ Bloodstock fraudulently represented the value of a mare,9 New Zealand Bloodstock Finance & Leasing v Jones HC Auckland CIV-2019-404-1822, 17December 2019 (Minute).10 New Zealand Bloodstock Finance & Leasing Limited v Jones [2020] NZHC 431 at [7].11 At [11].12 High Court Rules 2016, r 9.75.13 New Zealand Bloodstock Finance & Leasing Limited v Jones, above n 10, at [19].14 At [20].Woodpecker Hill, for his acquisition at a vastly inflated price. Woodpecker Hill wasacquired under the lease. This, he alleged, was one of a large number of actions takenagainst him by parties involved in the thoroughbred industry, including byNZ Bloodstock in refusing entry of his bloodstock to particular sales under its controland denigrating the worth of his bloodstock business and the value of the progeny hesought to sell.[20] I did not see any of that provided grounds then to dismiss or stayNZ Bloodstock's summary judgment application, all of which was capable of beingraised by him in opposition to NZ Bloodstock's necessary contention he 'had nodefence' to its claims. Mr Jones also raised the rump of his 14 February 2020application as remaining to be determined; I did not think it significant as "what thewitnesses may have to say is less material in opposition than the availability of adefence":15 i.e., "reasonable particulars of the matters which he claims ought to be putin issue".16 Mr Jones remained on notice he needed to be able to establish theprospective relevance of such evidence before it would be admitted. I deferredconsideration of Mr Jones' 19 May 2020 application as "better to be determined at orafter the substantive hearing".17[21] On 25 May 2020, the day before the substantive hearing, Mr Jones applied forstay of NZ Bloodstock's application and adjournment of the proceeding, pendinghearing of his appeal to the Court of Appeal against my refusal earlier to stay ordismiss NZ Bloodstock's summary judgment application. His supporting affidavit of25 May 2020 exhibits examples of the New Zealand Bloodstock corporate group'srepresentation of itself as a unitary whole, and generally explains his "great difficultieswith the behaviour of numerous people within the bloodstock industry", includingdisputes with entities without apparent connection to NZ Bloodstock.[22] At the hearing, I explained I remained unwilling to stay the application oradjourn the proceeding, determination of which should continue to depend onNZ Bloodstock's ability to discharge its onus to satisfy me Mr Jones 'had no defence'15 New Zealand Bloodstock Finance & Leasing v Jones HC Auckland CIV-2019-404-1822, 20 May2020 (Minute) at [4].16 At [15] above.17 New Zealand Bloodstock Finance & Leasing v Jones, above n 15, at [5].to its claims, in opposition to which Mr Jones remained able to argue for its unfair orunjust determination in light of his intended cross-claims and proposed evidence.[23] Mr King then renewed his objection to much of the content of Mr Jones'November 2019 and February 2020 affidavits, largely as inadmissible irrelevant,opinion and hearsay evidence. Additionally, he objected to admission of Mr Jones' twoMay 2020 affidavits. I address those matters at [39] below.Discussion[24] The advances contract provides at cl 2(d):Notwithstanding the Review date its extension or variation andnotwithstanding the due date for payment in full described herein, theadvances and all other monies outstanding under this Facility or any partthereof are repayable by the Borrower to the Creditor 'upon demand' asdefined herein.'Upon demand' self-referentially is defined as meaning "upon demand being made bynotice in writing", signed by or on behalf of NZ Bloodstock and served on its recipientpersonally or by post. NZ Bloodstock's solicitors' letter of 12 April 2019 in respect ofthe advances contract establishes service of that demand on Mr Jones. It was not met.[25] Although the advances contract included a section titled "Initial disclosure"made with reference to s 17 of the Credit Contracts and Consumer Finance Act 2003,that section only applies to "consumer credit contracts", for "the credit to be used,or intended to be used, wholly or predominantly for personal, domestic, orhousehold purposes". Mr Jones' own evidence is the advances were sought to be usedfor his thoroughbred breeding business. Section 17 has no application.[26] The lease provides at cl 7(d):Upon the termination of this Lease for any reason other than effluxion of timethe Lessee shall pay to the Lessor by way of liquidated and ascertaineddamages an amount equal to the sum .The "sum" is everything "payable by the Lessee to the Lessor under the provisions ofthis Lease". The scheme of the lease specifies as a default any failure to pay moneydue under the lease. Default entitles NZ Bloodstock to call up the balance of moniespayable under the lease, and/or to obtain judgment against Mr Jones for those monies.[27] In effect, on Mr Jones' initial default in paying periodic rental (and GST andinterest) under the lease, by its solicitors' 12 April 2019 letter in respect of the lease,NZ Bloodstock called up the balance of monies payable and, on Mr Jones' continueddefault, now seeks judgment accordingly. If Mr Jones' defence would be he only wasliable for the initial payments,18 the 12 April 2019 letter is effective to extend hisliability to the balance.[28] Strikingly, given Mr Jones' contention he had a business relationship withNZ Bloodstock in which NZ Bloodstock would not avail itself of its powers to demandrepayment for a period of some years, there is almost no evidence tendered byMr Jones or NZ Bloodstock of Mr Gwyn's representations to him. Mr Gwyn'sretirement from NZ Bloodstock does not put him out of bounds as a witness for eitherparty. No explanation otherwise is given for the absence of evidence from him. I inferhis evidence would not have assisted either of them.19 Given that mutuality, I do notgo further to conclude either party's case is strengthened by his absence.[29] Mr Jones' evidence is more equivocal on the metes and bounds of hisrelationship with NZ Bloodstock. He acknowledges, while NZ Bloodstock is said tohave encouraged investment in his business through its credit facility, "doing so andexpanding the business was clearly part of my plan". That is supported by Mr Fraserwho says NZ Bloodstock "desired a successful bloodstock business for [Mr Jones],and loaned [him] funds to achieve his business goals". But Mr Jones comprehends:[I]t would have been plain to both Mr Gwyn and [NZ Bloodstock] that arepayment of the loan on demand would have had the effect of stultifying thebusiness completely at any time that was chosen to be done.Mr Jones asserts a widely-held understanding bloodstock businesses "will take 5 to 7years to move into profit", by reason of "the nature of breeding and the requiredwaiting time for progeny to reach to point of sale". The inference is NZ Bloodstock isto be taken to have agreed to provide him with that support for that period of time.18 See [14](a) above.19 Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA) at [153].[30] The inference is at odds with Mr Jones' representations to NZ Bloodstock inJanuary 2018, after meeting with its managing director, Andrew Seabrook. He hadspoken to Mr Seabrook in terms of them being "business partners", of whichMr Seabrook had asked what Mr Jones meant. Mr Jones later responded he "regardednzb and myself as having a potentially long term relationship" (emphasis added). AsI have explained,20 in correspondence with Mr Fraser in September 2018, seeking "anoverall extension on the facility for a [y]ear", Mr Jones said "I am a good and activeclient and the business needs another 2-3 years to find [its] feet. [I] am only in year 3-4". In both of those exchanges, as well as in myriad others during this period,Mr Jones' pre-existing "business relationship" contention would have been a completeanswer to NZ Bloodstock's alternative course. Mr Jones did not then raise it.[31] Mr Jones also is express the conspiracy he complains to have been subjectedis his reconstruction in hindsight of a variety of untoward circumstances exceedingcoincidence. An example of that is the alleged fraud by which NZ Bloodstock is saidto have induced Mr Jones' entry into the lease by misrepresenting the subject mare'svalue, to which I now turn.[32] In opposition to the summary judgment application, Mr Jones exhibits the onlycorrespondence in evidence from Mr Gwyn, an email dated 24 January 2018, atMr Seabrook's request attaching NZ Bloodstock's valuation of Mr Jones' bloodstockas at 31 December 2017. The valued horses include Woodpecker Hill at $50,000.Mr Jones says at the time of its acquisition in September 2017, he was concerned by"the asking price which seemed significant relative to the pedigree of the mare".He sought a pre-purchase valuation from NZ Bloodstock. He doubted its $45,000valuation (such doubt said to have been affirmed by a subsequent informal valuationof the mare at $15,000), but was unlikely to be able to secure a competing valuationgiven NZ Bloodstock's dominant market presence.[33] Specific fraud was not then alleged. Rather, Mr Jones accepted "thethoroughbred industry is a relatively volatile one and prices can fluctuate over aperiod of time for young horses", but considered he:20 At [8] above. was regarded as a 'free hit' by those whose advice I was taking in relationto the purchase and sale of animals and the marketing and other behaviour ofpeople towards me, my animals, and my business was highly questionable.In reply, NZ Bloodstock's bloodstock sales manager, Daniel Rolston, affirmed andsubstantiated Woodpecker Hill's initial valuation at September 2017. Notwithstandinghis initial doubt he could obtain an alternative valuation, Mr Jones then did so, fromMr Clark of $1500 at August 2018.[34] Even so, at the time of seeking leave to adduce affidavit evidence of the newvaluation, Mr Jones acknowledged:Mares by the stallion Stravinsky [as was Woodpecker Hill] are highly [sought]after and sometimes the possibility of high performing family members beinglikely to surface in the near future can impact on values and so in retrospect itwas perhaps possible for the mare to be of a value of something like the figurefor which I finally purchased her. I recall at the time as well that there wassome mention of another purchaser having offered a sum similar to that.That seems a more accurate assessment in the context of the lease's clause 4, by whichMr Jones "warrants acknowledges and agrees", among other things, NZ Bloodstock"makes no representation or warranty of any kind in respect of this Lease". ThusMr Jones cannot point to substantiated allegations of fraud by NZ Bloodstock, such asmay make its claim against him unsuitable for resolution by summary judgment.[35] Without fraud, Mr Jones needs to point to something in NZ Bloodstock'sconduct in the advances contract or lease, or their enforcement, that is "oppressive,harsh, unjustly burdensome, unconscionable, or in breach of reasonable standards ofcommercial practice".21 But Mr Jones was express he sought the advances contract'sextension of further credit at a time he was "stitched for cash" and sought "a bit ofroom".22 (Inconveniently, this was around the time the first annual payment of thelease fell due on 10 June 2018.) He rejected the conditions proposed for the profferedextension of time. The consequences were unavoidable.[36] I see nothing in the evidence to suggest the availability to Mr Jones of anydefence to NZ Bloodstock's claims. It inherently is improbable a commercial tradingoperation such as NZ Bloodstock would have waived contractual entitlements to21 Credit Contracts and Consumer Finance Act 2003, s 118.22 At [8] above.recover its credit to Mr Jones for five to seven years, irrespective of his business'financial position; it is as improbable a legally-experienced business person such asMr Jones would have entered arrangements, intended to sustain his business for thosefive to seven years, containing express requirements for their earlier periodic andunilateral on-demand repayment. Even Mr Jones acknowledged NZ Bloodstock'scurrent requirements were at least for "cashflow to cover the interest and security".23But, except for the proceeds of sale in the first half of 2017, he provided no cashflow.And NZ Bloodstock's queries about the whereabouts of its security went unanswered.Mr Jones disputed NZ Bloodstock's entitlement to proceeds of sale in late 2018.[37] Neither does the thoroughbred industry's, or even NZ Bloodstock's, allegedanimus toward Mr Jones offer a basis on which to impeach NZ Bloodstock's claim.Regardless of the parties' relationship, the reality is NZ Bloodstock provided Mr Joneswith funds for his business, which he was liable to repay. Mr Jones does not disputesuch liability, but only the timing of its recovery. From that perspective, the availabilityof his claimed equitable set-off is immaterial. It does not impeach Mr Jones' liabilityto NZ Bloodstock. If the timing of its recovery is proved to contribute to the conspiracyalleged by Mr Jones, it may provide an additional head for damage fromNZ Bloodstock, rather than any reduction of his liability to NZ Bloodstock. The two– Mr Jones' liability to NZ Bloodstock, and NZ Bloodstock's contended liability toMr Jones – are not interdependent. The cross-claim does not impeach NZ Bloodstock'sclaim, but rather relies on its pursuit as further evidence of the industry-wideconspiracy against Mr Jones. There is nothing unfair or unjust about determiningNZ Bloodstock's claim without taking Mr Jones' intended cross-claim into account.[38] NZ Bloodstock's claim for judgment raises nothing justifying trial; neitherdoes anything in Mr Jones' opposition to its summary determination. I am satisfiedMr Jones has no defence to NZ Bloodstock's claim. I therefore will dismiss hisapplications for adjournment, stay, or dismissal of the summary judgment application.23 At [8] above.Objections to evidence[39] Parties and counsel have significant obligations to ensure evidence complieswith the Evidence Act 2006. The Act's purpose is "to help secure just determinationof proceeding by providing for facts to be established by the application of logicalrules". No leeway can be permitted an unrepresented litigant. At least in relation tobriefs, challenges to admissibility must first be notified to the party concerned, forresolution between counsel. If remaining unresolved, "notice that there is anadmissibility issue must be given to the court by the challenging party" (emphasisadded).24 Although the time limits applying in relation to challenges to briefs may beless observable in proceedings in which affidavits are adduced, the principle shouldbe no different. The objective is challenges to admissibility are addressed in advanceof hearing or trial.25[40] NZ Bloodstock's challenges to admissibility of Mr Jones' November 2019 andFebruary 2020 affidavits are brought on orthodox grounds. However, in opposition tosummary judgment applications, irrelevance is a harder contest. That is becausedefendants are directed to file "an affidavit raising an issue of fact or law and givereasonable particulars of the matters which [they claim] ought to be put in issue".26Thus, for example, what may appear to be hearsay evidence if offered to prove thetruth of its contents may not be objectionable if offered instead to give such reasonableparticulars, or to raise an issue of fact or law. The issue is if what is offered justifiestrial; not if it is true in itself. An example is Mr Clark's $1500 valuation. It is offerednot necessarily for its truth, but to show the availability of an alternative valuation,contended to justify trial of NZ Bloodstock's claims for repayment. A further exampleis the breadth of the conspiracy contended for by Mr Jones. But the more speculativeand less grounded the offering, the less weight it carries to require trial.24 High Court Rules 2016, r 9.11.25 Jarden v Earthquake Commission [2015] NZHC 204 following MacDonald v Tower InsuranceLtd [2014] NZHC 2876, (2014) 22 PRNZ 490 at [16] and [20]; and Parihoa Farms Ltd v RodneyDistrict Council (2010) 20 PRNZ 8. See also Gillian Combe QC "Witness statements in civil cases– show me the evidence" (paper presented at "Litigation Skills Masterclass" seminar, StamfordPlaza, Auckland, 25 November 2015) <www.gilliancoumbe.co.nz>.26 Pemberton v Chappell, above n 4, at 4.[41] On that basis, I am not minded to determine the objections to admissibility.I accept, even with the latitude I have expressed, Mr Jones' affidavits extend wellbeyond the factual expression of what he saw, heard, or knew. But no purpose now isserved in excluding any aspect of his evidence. I have given it the weight it deserves.Result[42] Mr Jones' applications dated 19 and 25 May 2020 are dismissed. I givejudgment against Mr Jones on NZ Bloodstock's claim dated 3 September 2019.—Jagose J