SMITH v MOANA [2013] NZHC 2754

SMITH v MOANA [2013] NZHC 2754

Defendants' asserted defences fail: alleged oral variations are unenforceable under s24, there is no credible evidence of part performance, promissory estoppel is defeated by the signed written contract, and the trust/limitation argument does not prevent individual liability; therefore there is no substantial defence and the summary judgment will not be set aside.

Citation
[2013] NZHC 2754
Parties
Plaintiff: Shane Michael Smith; Plaintiff: Leanne Margaret Smith; Defendant (trustee): Tommy Kuri Moana; Defendant (trustee): John Malcolm Ruka
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 October 2013
Procedural Posture
Application to Set Aside Summary Judgment (contract for Sale of Land) / Hearing on Application to Set Aside Summary Judgment; Judgment Delivered
Outcome
Application to set aside summary judgment dismissed; summary judgment remains in force.
Legal Topics
Summary Judgment, Part Performance, Promissory Estoppel, Oral Variation of Written Land Contract, Limitation of Liability of Trustees, Property Law Act 2007 S24 and S26
Property Law Contract Law Equity Civil Procedure Trusts Summary Judgment Part Performance Promissory Estoppel +3 more

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Parties

Shane Michael Smith

Plaintiff

Leanne Margaret Smith

Plaintiff

Tommy Kuri Moana

Defendant (trustee)

John Malcolm Ruka

Defendant (trustee)

Procedural Posture

Application to Set Aside Summary Judgment (contract for Sale of Land) / Hearing on Application to Set Aside Summary Judgment; Judgment Delivered

Legal Issues

  1. 1 Whether alleged oral variations to a land sale contract are enforceable given s24 Property Law Act 2007
  2. 2 Whether doctrine of part performance removes s24 bar
  3. 3 Whether promissory estoppel prevents enforcement of written contract terms

Ratio Decidendi

Defendants' asserted defences fail: alleged oral variations are unenforceable under s24, there is no credible evidence of part performance, promissory estoppel is defeated by the signed written contract, and the trust/limitation argument does not prevent individual liability; therefore there is no substantial defence and the summary judgment will not be set aside.

Court Disposition

Application to set aside summary judgment dismissed; summary judgment remains in force.

Orders

  • Application to set aside judgment dismissed
  • Defendants to pay costs to plaintiffs on Category 2 Band B for this application and disbursements as fixed by the Registrar