ALLIED FARMERS INVESTMENTS LIMITED V ELGIN INVESTMENTS LIMITED (IN RECEIVERSHIP) AND ORS HC CHCH CIV 2010 409 520

ALLIED FARMERS INVESTMENTS LIMITED V ELGIN INVESTMENTS LIMITED (IN RECEIVERSHIP) AND ORS HC CHCH CIV 2010 409 520

Amendment to pleadings was permitted; the guarantors remained liable as pleaded and had agreed to variations; contractual clauses in the loan agreement and deeds of guarantee unambiguously excluded set-off and counterclaim except to the extent "required by law"; the asserted equitable set-off based on an independent Five Mile loan was not sufficiently interdependent or arguable and therefore did not prevent summary judgment; consequently summary judgment was entered for plaintiff and the statutory demand was not set aside.

Citation
openlaw-328c6ffb_7f68_4849_8b60_752e803f8d0a.pdf
Parties
Plaintiff / Respondent: Allied Farmers Investments Limited; First Defendant: Elgin Investments Limited (in receivership); Second Defendant: David Ian Henderson; Third Defendant / Applicant: RFD Investments Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 July 2010
Procedural Posture
Summary Judgment Proceeding and Application to Set Aside Statutory Demand / Judgment on Summary Judgment Application and Setting Aside Application (decision)
Outcome
Judgment for plaintiff (Allied Farmers Investments Limited) on summary judgment; application to set aside statutory demand dismissed; leave to amend statement of claim granted
Legal Topics
Summary Judgment, Statutory Demand (companies Act S290), Equitable Set Off, Assignment of Debt, Guarantee and Indemnity, Amendment of Pleadings, Contractual Exclusion of Set Off, Contractual Remedies Act S11
Contract Law Companies Law Insolvency Civil Procedure Equity (set Off) Security and Guarantees Summary Judgment Statutory Demand (companies Act S290) +6 more

Case Brief

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Parties

Allied Farmers Investments Limited

Plaintiff / Respondent

Elgin Investments Limited (in receivership)

First Defendant

David Ian Henderson

Second Defendant

RFD Investments Limited

Third Defendant / Applicant

Procedural Posture

Summary Judgment Proceeding and Application to Set Aside Statutory Demand / Judgment on Summary Judgment Application and Setting Aside Application (decision)

Legal Issues

  1. 1 Whether defendants have any arguable defence to plaintiff's summary judgment claim
  2. 2 Whether pleadings were deficient and if amendment should be allowed
  3. 3 Whether equitable set-off based on an independent loan (Five Mile) displaces plaintiff's claim

Ratio Decidendi

Amendment to pleadings was permitted; the guarantors remained liable as pleaded and had agreed to variations; contractual clauses in the loan agreement and deeds of guarantee unambiguously excluded set-off and counterclaim except to the extent "required by law"; the asserted equitable set-off based on an independent Five Mile loan was not sufficiently interdependent or arguable and therefore did not prevent summary judgment; consequently summary judgment was entered for plaintiff and the statutory demand was not set aside.

Court Disposition

Judgment for plaintiff (Allied Farmers Investments Limited) on summary judgment; application to set aside statutory demand dismissed; leave to amend statement of claim granted

Orders

  • Leave granted to plaintiff to file amended statement of claim
  • Judgment in CIV 2010 409 520 for plaintiff for $4,698,661.63