This case was an appeal against summary judgment entered in the High Court against the appellants under personal guarantees of loan advances by ASB Bank. Summary judgment was upheld on appeal to the Court of Appeal, where the appellants had advanced the same arguments they had put forward in the High Court. In the Supreme Court, the appellants raised a new argument relating to the non-disclosure of a settlement agreement which potentially impacted on the quantum of the respondent's claims against the appellants. The majority in the Supreme Court held that by not disclosing the settlement agreement, the respondent (Wiltshire Investments Limited) had failed to establish that there was no defence to the entry of summary judgment and therefore did not make out its case for summary judgment under rule 12.2(1) of the High Court Rules.
In making its decision, the majority noted that its judgment in the appellants favour was a "considerable indulgence" given that they had only raised this argument so late in the piece, and therefore gave the respondent the opportunity to renew its application for summary judgment in the High Court once it had disclosed the settlement agreement (despite the conventional view that a party only gets one crack at summary judgment).
It remains to be seen how this decision is interpreted and applied. On the one hand, perhaps it will be seen as a one-off solution to unusual circumstances. However, on the other hand, as noted by the dissenting judges (McGrath and Chambers JJ), the decision also has the potential to encourage unsuccessful defendants on summary judgment applications to raise new grounds of defence on appeal, thereby depriving the summary judgment procedure of much of its utility.
See court decision here.