MCCOLL v TATTON [2015] NZHC 2560

MCCOLL v TATTON [2015] NZHC 2560

The defendant had no arguable defence: the guarantee's principal debtor clause and broad saving language (clause 10) prevented discharge by the plaintiffs' compromises and indulgences with co-guarantors (Robison and McColl); the variations that occurred were not prejudicial and did not release the defendant, so...

Source-derived case information.

Citation
[2015] NZHC 2560
Parties
Plaintiff: Peter Alan McColl; Plaintiff: Faye Eleanor McColl; Plaintiff: JK Hamilton Trustee Services Limited as trustees of the McColl Family Trust; Defendant: Mark Steven Tatton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 October 2015
Procedural Posture
Civil Proceeding: Summary Judgment and Application to Set Aside Judgment and Bankruptcy Notice / Interlocutory (application to Set Aside Summary Judgment and Bankruptcy Notice Heard in Chambers)
Outcome
Applications dismissed: summary judgment and application to set aside bankruptcy notice dismissed
Legal Topics
Summary Judgment, Setting Aside Judgment, Guarantee Liability, Release of Co Guarantor, Contract Interpretation, Bankruptcy Notice
Contract Guarantee/suretyship Civil Procedure Insolvency/bankruptcy Summary Judgment Setting Aside Judgment Guarantee Liability Release of Co Guarantor +2 more

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Parties

Peter Alan McColl

Plaintiff

Faye Eleanor McColl

Plaintiff

JK Hamilton Trustee Services Limited as trustees of the McColl Family Trust

Plaintiff

Mark Steven Tatton

Defendant

Procedural Posture

Civil Proceeding: Summary Judgment and Application to Set Aside Judgment and Bankruptcy Notice / Interlocutory (application to Set Aside Summary Judgment and Bankruptcy Notice Heard in Chambers)

Legal Issues

  1. 1 Whether the summary judgment obtained by default should be set aside under High Court Rules r 12.14
  2. 2 Whether the defendant has an arguable/possible defence to the guarantee claim
  3. 3 Whether compromises/variations with co-guarantors (deed with Robison and arrangements with McColl) operate to discharge or release the defendant as guarantor

Ratio Decidendi

The defendant had no arguable defence: the guarantee's principal debtor clause and broad saving language (clause 10) prevented discharge by the plaintiffs' compromises and indulgences with co-guarantors (Robison and McColl); the variations that occurred were not prejudicial and did not release the defendant, so there was no miscarriage of justice and the summary judgment and bankruptcy notice should not be set aside.

Court Disposition

Applications dismissed: summary judgment and application to set aside bankruptcy notice dismissed

Orders

  • Application to set aside the summary judgment dismissed
  • Application to set aside the bankruptcy notice dismissed