CREGTEN AND ANOR V COMPARK PROPERTIES LTD AND ORS HC AK CIV 2009-404-002415

CREGTEN AND ANOR V COMPARK PROPERTIES LTD AND ORS HC AK CIV 2009-404-002415

Defendants failed to provide adequate evidential foundation to establish a bona fide defence to the verified debt; clause 2(1) of the asset finance agreements (payments 'without any set-off, deduction or counterclaim') precludes the defendants' asserted set-off or counterclaim arising from the alleged misapplication of third-party funds; accordingly summary judgment was entered for $193,867.56 and interlocutory relief ordered for recovery of secured vehicles, with interest and costs reserved for later determination.

Citation
openlaw-4d2332cf_35a8_4311_81f6_c5c6830bfdb2.pdf
Parties
First Plaintiff: John Joseph Cregten; First Plaintiff: Andrew John McKay; Second Plaintiff: Bank of New Zealand; First Defendant: Compark Properties Limited; Second Defendant: Julie Margaret Alexander; Third Defendant: Parnell Property Investments Limited; Third Defendant: St Stephens Investments Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 August 2009
Procedural Posture
Civil Summary Judgment and Interlocutory Application / High Court Judgment on Summary Judgment and Interlocutory Order (judgment 4 August 2009)
Outcome
Judgment entered for plaintiffs against first and second defendants for $193,867.56; interest and costs reserved; interlocutory order for immediate delivery up of secured vehicles upon service of sealed order under s109 PPSA.
Legal Topics
Summary Judgment, Interlocutory Order, Set Off, Guarantee, Asset Finance Agreements, Delivery Up of Secured Property, Evidential Burden
Contract Security Interests Personal Property Securities Civil Procedure Summary Judgment Interlocutory Order Set Off Guarantee +3 more

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Parties

John Joseph Cregten

First Plaintiff

Andrew John McKay

First Plaintiff

Bank of New Zealand

Second Plaintiff

Compark Properties Limited

First Defendant

Julie Margaret Alexander

Second Defendant

Parnell Property Investments Limited

Third Defendant

St Stephens Investments Limited

Third Defendant

Procedural Posture

Civil Summary Judgment and Interlocutory Application / High Court Judgment on Summary Judgment and Interlocutory Order (judgment 4 August 2009)

Legal Issues

  1. 1 whether defendants have a bona fide defence to the debt claim
  2. 2 whether a 18 December 2007 instruction created a $150,000 credit to borrower's account
  3. 3 whether alleged payments claimed by defendants were credited to loan accounts

Ratio Decidendi

Defendants failed to provide adequate evidential foundation to establish a bona fide defence to the verified debt; clause 2(1) of the asset finance agreements (payments 'without any set-off, deduction or counterclaim') precludes the defendants' asserted set-off or counterclaim arising from the alleged misapplication of third-party funds; accordingly summary judgment was entered for $193,867.56 and interlocutory relief ordered for recovery of secured vehicles, with interest and costs reserved for later determination.

Court Disposition

Judgment entered for plaintiffs against first and second defendants for $193,867.56; interest and costs reserved; interlocutory order for immediate delivery up of secured vehicles upon service of sealed order under s109 PPSA.

Orders

  • Judgment entered against first and second defendants for $193,867.56 (sum owing as at 17 July 2009)
  • Interest and costs reserved; plaintiffs to file and serve memorandum and any supporting affidavit on interest and costs; defendants to file and serve any opposing memorandum and affidavit within seven days thereafter