SURE DEVELOPMENTS LTD V NORTHSHORE TAVERNS LTD AND ANOR HC AK CIV 2005-404-3924

SURE DEVELOPMENTS LTD V NORTHSHORE TAVERNS LTD AND ANOR HC AK CIV 2005-404-3924

Summary judgment granted because plaintiff established a prima facie enforceable separate guarantee; defendants failed to produce an evidential foundation for alleged defences of illegality, misrepresentation, entitlement to $300,000 or loss from repudiation; even if deed of covenant raised illegality issues the court would validate or sever the guarantee and defendants contractually waived set-off; no genuine dispute of material fact required trial.

Citation
openlaw-81ffc2a6_7a8e_4874_a9b8_e9138d7c09b4.pdf
Parties
Plaintiff: Sure Developments Limited; First Defendant: Northshore Taverns Limited; Second Defendant: Gregory John Nisbet
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 March 2006
Procedural Posture
Civil Summary Judgment Application / Final Judgment on Summary Judgment Application
Outcome
Summary judgment entered for plaintiff Sure Developments Limited against Northshore Taverns Limited and Gregory John Nisbet
Legal Topics
Guarantee and Indemnity, Illegal Contracts Act, Gambling Act 2003, Gaming and Lotteries Act 1977, Summary Judgment, Set Off, Repudiation, Parol Evidence Rule
Contract Law Gaming Law Civil Procedure Tort Misrepresentation Guarantee and Indemnity Illegal Contracts Act Gambling Act 2003 Gaming and Lotteries Act 1977 +4 more

Case Brief

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Parties

Sure Developments Limited

Plaintiff

Northshore Taverns Limited

First Defendant

Gregory John Nisbet

Second Defendant

Procedural Posture

Civil Summary Judgment Application / Final Judgment on Summary Judgment Application

Legal Issues

  1. 1 Whether the defendants have an arguable defence to enforcement of the deed of guarantee dated 15 March 2004
  2. 2 Whether the guarantee is unenforceable for illegality under gaming legislation
  3. 3 Whether defendants have a set-off for alleged misrepresentation or wrongful repudiation

Ratio Decidendi

Summary judgment granted because plaintiff established a prima facie enforceable separate guarantee; defendants failed to produce an evidential foundation for alleged defences of illegality, misrepresentation, entitlement to $300,000 or loss from repudiation; even if deed of covenant raised illegality issues the court would validate or sever the guarantee and defendants contractually waived set-off; no genuine dispute of material fact required trial.

Court Disposition

Summary judgment entered for plaintiff Sure Developments Limited against Northshore Taverns Limited and Gregory John Nisbet

Orders

  • Summary judgment granted for performance of obligations under the deed of guarantee dated 15 March 2004 in favour of Sure Developments Limited
  • Defendants' application to file affidavit of Philip Molineaux granted (leave granted during proceedings)