HERRON v WALLACE [2013] NZHC 2073

HERRON v WALLACE [2013] NZHC 2073

The plaintiff failed to satisfy r12.4(5)(b) because his affidavit did not verify material allegations nor depose to a belief that defendants had no defence, and he failed to prove he was the trustee or had authority to bind the Churchside Trust; accordingly he did not show the defendants had no arguable defence that the debts vested in the Official Assignee or that he acted personally without authority, so summary judgment could not be granted.

Citation
[2013] NZHC 2073
Parties
Plaintiff: Stuart Walton Herron; First Defendant: Wayne Andrew Wallace; Second Defendant: Shades of Autumn Limited; Third Defendant: Belmont Lifestyle Village Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 August 2013
Procedural Posture
Civil Debt/contract (high Court) / Application for Summary Judgment (withdrawn/dismissed)
Outcome
Summary judgment application withdrawn by plaintiff and dismissed on reasons; court held defendants have arguable defences
Legal Topics
Summary Judgment, Undisclosed Principal/agency, Trusteeship and Delegation, Vesting of Assets on Bankruptcy, Entire Agreement Clause, Admissibility of Hearsay, Standing to Sue
Bankruptcy Trusts Contract Civil Procedure Equity Evidence Summary Judgment Undisclosed Principal/agency +5 more

Case Brief

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Parties

Stuart Walton Herron

Plaintiff

Wayne Andrew Wallace

First Defendant

Shades of Autumn Limited

Second Defendant

Belmont Lifestyle Village Limited

Third Defendant

Procedural Posture

Civil Debt/contract (high Court) / Application for Summary Judgment (withdrawn/dismissed)

Legal Issues

  1. 1 Whether applicant complied with High Court Rules r 12.4(5)(b) for affidavits
  2. 2 Whether plaintiff is sole trustee of the Churchside Trust and has standing to sue
  3. 3 Whether the debts under the deeds are trust assets or vested in the Official Assignee on bankruptcy

Ratio Decidendi

The plaintiff failed to satisfy r12.4(5)(b) because his affidavit did not verify material allegations nor depose to a belief that defendants had no defence, and he failed to prove he was the trustee or had authority to bind the Churchside Trust; accordingly he did not show the defendants had no arguable defence that the debts vested in the Official Assignee or that he acted personally without authority, so summary judgment could not be granted.

Court Disposition

Summary judgment application withdrawn by plaintiff and dismissed on reasons; court held defendants have arguable defences

Orders

  • Summary judgment application withdrawn/dismissed
  • Costs reserved