JACK AND ANOR V CARVER AND ORS HC AK CIV 2008-404-5610

JACK AND ANOR V CARVER AND ORS HC AK CIV 2008-404-5610

Documentary evidence (loan agreements, deed of guarantee, deed of acknowledgement and deed of assignment) established prima facie indebtedness; assignment to plaintiff and statutory/common law rights of a guarantor who pays entitled plaintiff to recover; defendants' asserted estoppel and oral agreement defences were not tenable against clear written instruments and affidavit evidence; plaintiffs demonstrated sufficient evidence of risk of dissipation and failure to disclose to justify continuation of the freezing order, so summary judgment and related relief were granted on causes 2, 3 and 4.

Citation
openlaw-f38225da_86df_4009_aec6_6327e1b99997.pdf
Parties
First Plaintiff: NEIL CLARENCE JACK; Second Plaintiffs: NEIL CLARENCE JACK AND ALAN ROBERT JACK AS TRUSTEES OF THE JACK FAMILY TRUST; First Defendant: SHIRLEY ANNE CARVER; Second Defendant: GARRY DESMOND STEWART; Third Defendants: SHIRLEY-ANNE CARVER, GARRY DESMOND STEWART AND HAYDN AS TRUSTEES OF THE WHITIORA TRUST
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 April 2009
Procedural Posture
Debt and Guarantor Indemnity / Summary Judgment Application and Interlocutory Applications (freezing Order and Disclosure Enforcement)
Outcome
Summary judgment entered for plaintiffs on the second, third and fourth causes of action; defendants' application to discharge freezing order dismissed; enforcement/disclosure orders granted in part.
Legal Topics
Summary Judgment, Assignment of Debt, Guarantor's Indemnity, Freezing Order (mareva Injunction), Estoppel by Representation and Change of Position, Deed of Acknowledgement of Debt
Contract Trusts Property Law Equity Civil Procedure Summary Judgment Assignment of Debt Guarantor's Indemnity +3 more

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Parties

NEIL CLARENCE JACK

First Plaintiff

NEIL CLARENCE JACK AND ALAN ROBERT JACK AS TRUSTEES OF THE JACK FAMILY TRUST

Second Plaintiffs

SHIRLEY ANNE CARVER

First Defendant

GARRY DESMOND STEWART

Second Defendant

SHIRLEY-ANNE CARVER, GARRY DESMOND STEWART AND HAYDN AS TRUSTEES OF THE WHITIORA TRUST

Third Defendants

Procedural Posture

Debt and Guarantor Indemnity / Summary Judgment Application and Interlocutory Applications (freezing Order and Disclosure Enforcement)

Legal Issues

  1. 1 Whether defendants have any tenable defence to the claims founded on documented loan instruments and assignment
  2. 2 Whether Provincial Finance debt assignment to plaintiff validly vested rights enabling recovery
  3. 3 Whether guarantor (plaintiff) who paid creditor is entitled to indemnity from principal debtors

Ratio Decidendi

Documentary evidence (loan agreements, deed of guarantee, deed of acknowledgement and deed of assignment) established prima facie indebtedness; assignment to plaintiff and statutory/common law rights of a guarantor who pays entitled plaintiff to recover; defendants' asserted estoppel and oral agreement defences were not tenable against clear written instruments and affidavit evidence; plaintiffs demonstrated sufficient evidence of risk of dissipation and failure to disclose to justify continuation of the freezing order, so summary judgment and related relief were granted on causes 2, 3 and 4.

Court Disposition

Summary judgment entered for plaintiffs on the second, third and fourth causes of action; defendants' application to discharge freezing order dismissed; enforcement/disclosure orders granted in part.

Orders

  • Judgment for the first plaintiff against the first and second defendants on the second cause of action in the sum of $981,853.35 together with interest as claimed and costs on a 2B basis
  • Judgment for the first plaintiff against the third defendants on the third cause of action in the sum of $159,665 together with interest as claimed and costs on a 2B basis; liability of third defendant Haydn Ash limited to the assets of the Whitiora Trust