STRATEGIC NOMINEES LTD V JCT DAVIS AND ANOR HC AK CIV 2008-404-004978

STRATEGIC NOMINEES LTD V JCT DAVIS AND ANOR HC AK CIV 2008-404-004978

The defendants failed to establish a reasonable explanation for their delay and did not demonstrate an arguable defence or valid cross-claim; the deed's clause excluding deductions and set-offs (clause 9.2(b)) precluded the defendants from relying on a cross-claim or set-off, so the application to set aside the summary judgment was dismissed.

Citation
openlaw-33ab3081_48e9_4ae3_9cbb_e055f54b9fc6.pdf
Parties
Plaintiff: Strategic Nominees Ltd; First Defendant: John Charles Thomas Davis; Second Defendant: Terence Michael O'Halloran
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 July 2009
Procedural Posture
Civil Summary Judgment Enforcement / Application to Set Aside Summary Judgment
Outcome
Application to set aside summary judgment dismissed.
Legal Topics
Summary Judgment, Set Off, Counterclaim, Guarantee and Indemnity, Contractual Exclusion of Set Off, Equitable Set Off, Indemnity Costs
Contract Civil Procedure Security and Lending Guarantees and Indemnities Summary Judgment Set Off Counterclaim Guarantee and Indemnity +3 more

Case Brief

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Parties

Strategic Nominees Ltd

Plaintiff

John Charles Thomas Davis

First Defendant

Terence Michael O'Halloran

Second Defendant

Procedural Posture

Civil Summary Judgment Enforcement / Application to Set Aside Summary Judgment

Legal Issues

  1. 1 Whether defendants provided a reasonable explanation for delay in defending the summary judgment application
  2. 2 Whether defendants have an arguable defence or valid cross-claim sufficient to set aside summary judgment
  3. 3 Whether clause 9.2(b) of the deed of guarantee and indemnity excluded set-off and cross-claims by the guarantors

Ratio Decidendi

The defendants failed to establish a reasonable explanation for their delay and did not demonstrate an arguable defence or valid cross-claim; the deed's clause excluding deductions and set-offs (clause 9.2(b)) precluded the defendants from relying on a cross-claim or set-off, so the application to set aside the summary judgment was dismissed.

Court Disposition

Application to set aside summary judgment dismissed.

Orders

  • Plaintiff to file memorandum in support of application for indemnity costs within 10 working days
  • Defendants to file memorandum in reply within 10 working days thereafter