Hillary v Hillary [2019] NZDC 12329

Published 06 September 2019

Summary judgment — fairly arguable defence — estate dispute — no contact provisions — Pemberton v Chappell [1987] 1 NZLR 1, (1986) 1 PRNZ 183 — District Court Act 2016 s 133. The plaintiff sought summary judgment against the defendant, her brother, for multiple breaches of a consent order prohibiting contact, directly or indirectly, between the parties. The penalty for a breach was $20,000 per breach and the plaintiff sought $40,000 plus legal fees. The plaintiff alleges that she received text messages from the defendant and only engaged in an effort to ascertain who the messenger was. The defendant alleges that his wife had spoken to the plaintiff, had facilitated conversation between the parties and that the plaintiff had been receptive to further contact. For a successful summary judgment application, a defendant cannot have a fairly arguable defence. The Judge held that there were clearly arguable defences available to the defendant, namely; equitable estoppel; evidence of the plaintiff's 'waiver'; the enforceability of the penalty provision; and a variation of the consent order by the Family Court. The application was therefore dismissed and costs were reserved. Judgment Date: 28 June 2019.