Application for summary judgment — District Court Rules 2014, r 12.2(1) — NZI Bank Ltd v Philpott [1990] 2 NZLR 403. The plaintiffs made an application for summary judgment against the defendants for the recovery of $252,437.76 pursuant to a Security Deed they were party to. The plaintiffs and the three defendants were co-shareholders of a company. In August 2012, the plaintiffs advanced $250,000 to the Company. The defendants agreed to guarantee payment and entered into a deed. The deed provided for specific limitations on the defendants' liability. Later in 2013, it was agreed that the defendants would purchase the plaintiffs’ shares in the company. The plaintiffs agreed to advance an extra $150,000 to the defendants and $33,000 to the third defendant to complete the purchase and signed a Deed of Amendment and Restatement. The loan agreement between the Company and the plaintiffs provided that the repayment date was five years after the date on which the first advance was made and in the event of default (including interest payments) the plaintiffs could demand repayment of the full amount of the loan. The company failed to pay quarterly interest due June 2017, full payment was then demanded which the defendants also failed to pay, leading to the proceedings for summary judgment for $252,437.76. The defendants opposed summary judgment on the basis of the execution of the deed. The defendants allege that Schedule 5 of the deed was not attached to the document they signed, that they were not provided with time to take independent legal advice and that they understood the deed to relate to the $150,000 and $33,000 loans, not the original loan of $250,000. The Judge found that the alleged absence of Schedule 5 was significant as it was an integral part of the document, in that it provided the operative provisions which the plaintiffs rely on in their statement of claim. Further, the deed itself recommended that the defendants obtain independent legal advice and there were factual issues about what was said during the signing of the deed and whether the CEO was aware one of the defendants had dyslexia. The Judge held she was not satisfied there was no arguable defence to the claim, as the factual issues raised required further evidence and would likely involve credibility findings to be made which can only be determined at trial. For those reasons, the application for summary judgment was dismissed. Costs were reserved until final determination of the claim. Judgment Date: 8 February 2018.