5 Jul 2023
On the balance of probabilities the Court found the Settlement Agreement was entered into under duress and undue influence because Ying Zhong had been threatened (including threats to her life by Sun) and was coerced into signing; accordingly SILHK failed to establish by formal proof that Sunbow owed $2,077,853.74 and the claim was dismissed.
13 Jun 2023
The deed clearly fixed the debt and identified the only pre-agreed credit (the $43,000) and an acknowledged $4,000 credit; further pre-deed payments cannot be taken as additional credits absent express identification in the deed, so plaintiffs are entitled to summary judgment for the principal sum of $720,715.65 with statutory interest; clause 2.1 does not, on construction, entitle plaintiffs to indemnity costs for enforcement of the deed; the gift of the watches failed for lack of delivery because the key did not give the donee the means of obtaining possession and thus no constructive deliv…
15 Feb 2023
The Court held BNZ's claims were not time‑barred because guarantors provided written acknowledgements reviving the claims; the defendants had no arguable defence to the amounts claimed except for an issue as to guarantor liability for overdraft interest, but BNZ did not pursue unpaid overdraft interest because such interest charged before permanent overdraft was paid and subsequently reversed; accordingly summary judgment was entered for BNZ in the stated sums, excluding any unpaid overdraft interest, with interest and costs to be quantified and enforcement against some guarantors limited to…
18 Oct 2022
The Court granted targeted discovery limited to documents genuinely relevant to the pleaded issues and proportional to the litigation. It ordered discovery of all documents concerning the $100,000 advance to Andrew (2007) including accounting treatment and communications, required disclosure of trustees' advice and communications about calling up the $100,000 debt (when litigation was not yet inevitable), and limited any disclosure of privileged material under the joint interest exception to documents created before the joint interest ended (concluded to subsist until late 2020/around 10 Dece…
30 Sept 2022
The Court held the Limitation Act 2010 applied and the facility/guarantee boilerplate did not, on its terms and context, clearly and unambiguously contract out of the Act; however BNZ established that defendants (LPC, PHL, Glencoe JV, Galt and Mr Kerr) made written acknowledgements (emails, presentations, part‑payments and communications) that objectively admitted liability and thereby restarted limitation periods under s47, such that BNZ's claims are not time‑barred; the settlement deed was not an unequivocal acknowledgement; BNZ's certified account evidence was sufficient and defendants' ac…
9 Aug 2022
Court held the rights to recover the secured debts were statute barred as against Able Ventures because no s47 acknowledgement by its sole director revived limitation; applicant failed to discharge the onus to justify discharge under s105 LTA 2017 and the mortgages were not discharged; however court found on available evidence that K Bolton held the named mortgage interests on constructive trust for the second defendants and ordered transfer of mortgages B.388436.5 and M6484677.2 to the second defendants, reserving leave on the 2001 mortgage and on personal liability issues of the Bells.
10 Sept 2021
The Court directed payment of the $500,000 plus interest because the contemporaneous documentary evidence (the signed Deed of Acknowledgement of Debt), bank records of the 30 May 2008 payment, witness evidence of execution and solicitor's file notes overwhelmingly established the advance was a loan; Mr Macnamara's late, equivocal and inconsistent challenge to signature authenticity was insufficient to meet the threshold for forensic examination and did not create a genuine factual dispute to defeat the trustees' application for directions; the trustees had jurisdiction under the consent order…
5 Aug 2021
Summary judgment is refused because the defendants advanced an arguable promissory estoppel defence founded on the trustees' decision to convert an intended outright distribution into a loan for relationship property reasons; that conversion gave rise to a plausible representation, reliance and detriment such that the claim cannot be determined summarily.
29 May 2020
The court awarded scale costs (band 2B except band 2C for inspection) and disbursements in full to the plaintiff and declined to depart from the default joint and several liability under r 14.14 because two defendants did not participate at trial and the second defendant actively defended the claim (her claim consumed approximately 40–50% of the trial), so there were no exceptional circumstances to justify separate liabilities.
1 Apr 2019
Although Kumar Trustee Ltd held legal title, the parties’ conduct and documentary record (notably the 11 January 2010 gifting letter and consistent payments by the defendants that reduced the mortgage and met outgoings) established a common intention and gave rise to an institutional constructive trust such that the defendants were the beneficial owners of the equity in the property; consequently there was no enforceable vendor loan of $211,136.89 and the plaintiff’s debt claim failed.