JOHN DOUGLAS WILSON AND ORS V JOHNATHAN BRIAN IRVINE AND ORS CA CA232/2009

JOHN DOUGLAS WILSON AND ORS V JOHNATHAN BRIAN IRVINE AND ORS CA CA232/2009

The Deed of Termination obligated only delivery of executed transfers and payment of specified instalments; it did not impose an express or implied duty on the appellants to obtain a third‑party waiver, and the respondents were estopped by their own communications from asserting such a defence; accordingly no arguable equitable setoff or defence existed and summary judgment was appropriate.

Citation
openlaw-128a8a95_fdfa_469a_a616_89b201fe5248.pdf
Parties
First Appellant: John Douglas Wilson; Second Appellant: Adele Joy Wilson; Third Appellant: Tracey Michelle White; First Respondent: Johnathan Brian Irvine; Second Respondent: Felicity Jane Irvine; Third Respondent: Timothy Malcolm Irvine
Court
Court of Appeal
Jurisdiction
New Zealand
Judgment Date
7 December 2009
Procedural Posture
Civil Appeal / Appeal From Dismissal of Summary Judgment Application in High Court
Outcome
Appeal allowed; summary judgment entered for appellants; cross‑appeal dismissed.
Legal Topics
Summary Judgment, Deed of Termination, Equitable Setoff, Pre Emptive Rights, Estoppel, Share Transfer, Trustee Liability, Contractual Interest
Contract Trusts Equity Civil Procedure Summary Judgment Deed of Termination Equitable Setoff Pre Emptive Rights +4 more

Case Brief

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Parties

John Douglas Wilson

First Appellant

Adele Joy Wilson

Second Appellant

Tracey Michelle White

Third Appellant

Johnathan Brian Irvine

First Respondent

Felicity Jane Irvine

Second Respondent

Timothy Malcolm Irvine

Third Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Summary Judgment Application in High Court

Legal Issues

  1. 1 Whether the Deed of Termination required the appellants to obtain a waiver of third‑party pre‑emptive rights before transferring shares in GPK
  2. 2 Whether an arguable equitable setoff or estoppel defence existed to defeat summary judgment
  3. 3 Whether respondents were personally liable in addition to trustees

Ratio Decidendi

The Deed of Termination obligated only delivery of executed transfers and payment of specified instalments; it did not impose an express or implied duty on the appellants to obtain a third‑party waiver, and the respondents were estopped by their own communications from asserting such a defence; accordingly no arguable equitable setoff or defence existed and summary judgment was appropriate.

Court Disposition

Appeal allowed; summary judgment entered for appellants; cross‑appeal dismissed.

Orders

  • Summary judgment entered for the appellants in the sum of $3,580,000
  • Interest fixed at 13.25%: on $1,800,000 from 30 September 2007 to date of payment