MACDONALD v MACDONALD [2023] NZHC 2255

MACDONALD v MACDONALD [2023] NZHC 2255

Summary judgment was dismissed because there is a genuine and material conflict of evidence (including equivocal evidence from the solicitor who prepared the documents) that gives rise to a real question to be tried; plaintiffs did not satisfy the onus under r 12.2 to show the defendant had no defence.

Citation
[2023] NZHC 2255
Parties
Plaintiff (trustee of the Maka Trust): Andrew Phillip Macdonald; Plaintiff (trustee of the Maka Trust): Kathryn Giselle Enocinomacdonald; Defendant (farmer): Phillip Macdonald
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 August 2023
Procedural Posture
Summary Judgment / Application for Summary Judgment (dismissed)
Outcome
Application for summary judgment dismissed
Legal Topics
Summary Judgment, Deed of Acknowledgement of Indebtedness, Sale and Purchase Agreement, Enduring Power of Attorney / Agency, Conflicting Affidavit Evidence, Costs
Contract Property Civil Procedure Evidence Summary Judgment Deed of Acknowledgement of Indebtedness Sale and Purchase Agreement Enduring Power of Attorney / Agency +2 more

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Parties

Andrew Phillip Macdonald

Plaintiff (trustee of the Maka Trust)

Kathryn Giselle Enocinomacdonald

Plaintiff (trustee of the Maka Trust)

Phillip Macdonald

Defendant (farmer)

Procedural Posture

Summary Judgment / Application for Summary Judgment (dismissed)

Legal Issues

  1. 1 Whether the Deed of Acknowledgement created an enforceable debt of $500,000 payable on demand
  2. 2 Whether the ASP recorded a completed agreement for sale at $1,150,000 or whether the true agreement was payment of $650,000 only
  3. 3 Whether the Deed executed by attorney was binding on the defendant

Ratio Decidendi

Summary judgment was dismissed because there is a genuine and material conflict of evidence (including equivocal evidence from the solicitor who prepared the documents) that gives rise to a real question to be tried; plaintiffs did not satisfy the onus under r 12.2 to show the defendant had no defence.

Court Disposition

Application for summary judgment dismissed

Orders

  • Summary judgment application dismissed
  • Costs reserved