|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 8 July 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV 2000-419-000944
BETWEEN ENVIROSAND MERCER LTD Plaintiff
AND PERRY RESOURCES (2008) LIMITED Defendant
Hearing: 23 June 2010
Counsel: NW Ingram QC and RA Harrington for Plaintiff
MD Branch and CG Marr for Defendant
Judgment: 1 July 2010 at 10:00am
RESERVED JUDGMENT OF JUDGE FAIRE [on application for summary judgment]
This judgment was delivered by me on 1 July 2010 at 10:00am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: Harkness Henry, Private Bag 3077, Hamilton for plaintiff
Franklin Law, P O Box 43, Pukekohe for defendant
ENVIROSAND MERCER LTD V PERRY RESOURCES (2008) LTD HC HAM CIV 2000-419-000944 1 July
2010
The application
[1] The defendant applies for summary judgment, or in the alternative the striking out of all or some of the causes of action in the plaintiff’s amended statement of claim.
[2] As a result of the filing of a reply to the defendant’s statement of defence, the defendant accepts that the summary judgment application is no longer appropriate. The defendant accepts that there must be a trial in respect of part of the issues raised in the third cause of action.
[3] The defendant accordingly advances the strike out application on the basis that the first and second causes of action disclose no reasonable cause of action and that certain paragraphs, in particular, the prayer for relief in the third cause of action, are not sustainable. The defendant acknowledged that part of the prayer for relief in the sum of $77,632.80 relates to an issue that is not amenable to strike out and must be determined at trial.
The court’s approach to a strike out application
[4] A defendant who seeks an order striking out all or part of a pleading must satisfy the requirements of r 15.1. Rule 15.1 provides:
The court may strike out all or part of a pleading if it –
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[5] The court’s approach to a strike out application was summarised in Attorney- General v Prince and Gardner[1] as follows:
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed. (R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 at pp 294-295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pp 316-317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR
37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2
NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude
jurisdiction (Gartside v Sheffield, Young & Ellis).
[6] The principles referred to above were endorsed in Couch v Attorney- General.[2]
[7] The court can have regard to evidence either put forward in opposition or support of the application provided it does not contradict that which is pleaded in the statement of claim: Attorney-General v McVeagh [3] Although r 15.1 permits a striking out of part of a pleading the court discourages partial strike out applications: Apple Fields Ltd v New Zealand Apple and Pear Marketing Board[4] and Whitman v
Airways Corporation of New Zealand Ltd.[5]
[8] A partial strike out of a pleading may be justified where the portions to be struck out support a cause of action which relies on different facts to the remaining causes of action in the claim. That is because both the preparation for trial and the time of the trial itself may be substantially reduced thus justifying the benefit of the interlocutory examination.
Background
[9] The plaintiff’s business is the supply of aggregate products. It holds a resource consent to extract and process sand from Mercer Ferry Road, Pukekawa.
[10] The resource consent includes a condition requiring the plaintiff to submit engineering design plans and specifications and carry out work relating to road widening and sealing.
[11] The defendant’s business is the producing and marketing of aggregate based products.
[12] The plaintiff and the defendant entered into a written contract on 8 May
2006. It provided for the exclusive supply of sand, pumice and pea metal from the site to the defendant. I will deal with specific provisions of this contract when each cause of action in the amended statement of claim is analysed.
[13] In June 2007 the defendant began taking product under the agreement. It is common ground, for the purpose of this application, that the plaintiff had not complied with the resource consent in relation to:
a) Road widening or a sealed right-turn bay; and b) Sealed vehicle entrance to the quarry.
[14] In May 2008 the parties negotiated a variation to the agreement under which the minimum tonnage to be taken by the defendant was reduced from 15,000 tonnes to 10,000 tonnes and, in the second year, the quantity was reduced from 65,000 tonnes to 25,000 tonnes. The defendant, in the first year, paid for 10,000 tonnes but took only 4,000 tonnes.
[15] In August 2008 the plaintiff resolved to sell either all or part of its business. The agreement contained a first right of refusal in favour of the defendant. The plaintiff was in touch with the local authority concerning the proposed road widening.
[16] In December 2008 the defendant ceased paying the monthly invoices which the plaintiff issued to it. The parties commenced negotiations in relation to the possible exercise, by the defendant, of the option to purchase.
[17] On 9 March 2009 the defendant gave notice to the plaintiff of its intention to issue a notice of breach and to exercise a right of cancellation. That was followed, on 18 March 2009, by the actual notice requiring the plaintiff’s resource consent non-compliance to be rectified within 30 days and advising that if the plaintiff failed to do so the defendant was entitled to cancel the agreement.
[18] Correspondence passed between the respective solicitors for the parties. On
15 April 2009, the defendant’s solicitors advised the plaintiff’s solicitors that the notice of breach had expired and that the defendant intended to terminate the agreement. On 20 April 2009 the defendant’s solicitors gave the plaintiff notice that the agreement was terminated. On 24 April 2009 the plaintiff advised the defendant that the purported cancellation was not accepted and it, in turn, gave notice to the defendant of immediate cancellation of the agreement.
[19] The defendant continued to send trucks to collect product from the site between 20 April 2009 and 24 April 2009. Thereafter, no further product was taken by the defendant.
The amended statement of claim
[20] The amended statement of claim contains three causes of action which are:
a) Wrongful termination;
b) Breach of the good faith clause contained in the contract; and
c) Non-payment of the minimum quantities required to be taken in the second year of the contract, that is from 1 June 2008 plus certain invoices for product supplied and in respect of invoices issued in January, February, March, April and May of 2009 for a total of
$77,632.80.
The claim for the failure to pay the minimum quantities for the second year of the contract is quantified at $365,448.12. The total of the two components, namely,
$443,080.92 (GST inclusive) is claimed in relation to the third cause of action. [21] I shall now consider each cause of action.
First cause of action – wrongful termination
[22] The statement of claim pleads the following in support of the proposition that the defendant’s termination was wrongful:
a) The clause in the contract permitting termination required that the alleged default relied upon on the plaintiff’s part must be material. It is pleaded that the default was not material;
b) In any event, the contract may only be terminated by a party in good faith. It is pleaded that the defendant’s actions in cancelling the contract was not made in good faith;
c) As an alternative, the contract contained an implied term that termination must be only for a material breach and that the termination must only be exercised in good faith; and
d) The defendant, with the full knowledge of the plaintiff’s alleged breach, affirmed the contract and cannot now rely on the alleged breach to terminate the contract.
[23] I deal with the first aspect of this cause of action, the relevant clause in the contract.
[24] Clause 12 of the contract provides as follows:
12. Termination
12.1 Either party can terminate this Agreement by notice in writing to the other if:
12.1.1 The Licence Agreement is terminated; or
12.1.2 Envirosand Mercer fails to supply Products to the quality levels in the Specification for a continuous period of
3 months or longer.
12.2 Either party can terminate this Agreement by notice in writing to the other Party (“Termination Notice”) if the other Party:
12.2.1 Does not fulfil any of its obligations under this Agreement and either:
(a) The default is material and cannot be remedied; or
(b) The default has not been remedied 30 days after the other Party receives written notice of the default;
12.2.2 Goes into liquidation or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration,
12.2.3 Has a receiver, manager or statutory manager appointed,
12.2.4 Has a change in the effective control of that party except in accordance with clause 9.7
12.3 Termination is without prejudice to the rights of either party arising prior to termination.
12.4 Envirosand Mercer undertakes not to rely on clause 12.1 so as to effect an early termination of this Agreement for the purpose of supplying the Products to third parties.
[25] Clause 6.7 of the contract provides:
6.7 Envirosand Mercer will at all times maintain, keep current and comply with:
a. all resource consents required for the extraction of Products from the Site; and
b. The Licence Agreement.
Envirosand Mercer will make available to Perry upon demand copies of the resource consents, including any amendments or variations from time to time. The Licence Agreement will be available for inspection by Perry management at Envirosand Mercer’s premises at any reasonable time but is not to be removed or copied.
[26] It is common ground that at all material times the plaintiff was in breach of clause 6.7 of the contract. It did not maintain, keep current and comply with all resource consents required for extraction of product from its site. In particular, it did
not comply with clause “o” of the resource consent condition regarding the widening of Ferry Road.
[27] The defendant gave written notice of the default. The default was not remedied within 30 days of the plaintiff receiving the notice. Written notice of cancellation was provided by the defendant to the plaintiff.
[28] The plaintiff’s position is that the unremedied default has to be a material default before the contract can be cancelled. I reject that position for the following reasons:
a) The plain wording of the contract provides that the right of cancellation exists if the plaintiff does not fulfil any of its obligations under the agreement and the default has not been remedied 30 days after the plaintiff receives written notice of the default;
b) Clause 12.2.1 provides alternative positions. The first, in 12.2.1(a) deals with a default which is material and cannot be remedied. The second is that which is provided by 12.2.1(b) which is the provision relied upon by the defendant. They are quite separate situations;
c) There is a rational reason for requiring a default which cannot be remedied to be material before the right of termination exists. There is, in that case, no point in giving notice. It cannot be remedied. One would expect the default to have greater consequence in that situation and therefore required, as the contract provides, to be material. On the other hand, any default, ie breach of a party’s obligation, could only be relied upon in a clear situation. The parties have defined that position as one which arises where the default has not been remedied
30 days after the other party receives notice;
d) The parties have set up their own remedies provision. Its meaning is clear. It has a rational basis for it in providing two situations where a party might terminate the contract;
e) Clause 6.7 requires that both the licence agreement and the resource consent are kept current. The failure to do so is a breach. The parties have agreed, however, that the breach of the licence obligations gives the defendant an immediate right of cancellation. By contrast, a breach of the resource consent can only be relied upon if the breach goes unremedied after notice; and
f) There is no lack of commercial commonsense in this result, as was submitted by Mr Ingram. That is because the parties have provided in clear words a remedy provision which is clear and unambiguous. I accept Mr Branch’s submission that Mr Ingram’s reliance on Rice (t/a The Garden Guardian) v Great Yarmouth Borough Council[6] does not assist the plaintiff’s case. In that case there was no contractual right to cancel for failure to remedy the breach. For that reason, the common law issues of substantiality are raised. Clause 12.2 is drafted
to avoid the problem that the council was faced with in the Rice case.
[29] Accordingly, I conclude that default, as that term is used in clause 12.2.1(b)
does not require the default to be a material default.
[30] I consider next the second ground. In short, the question is: is the right to terminate qualified by a duty to exercise it only in good faith?
[31] It will be observed that there is no reference to good faith in clause 12.2.
[32] Other clauses in the contract, for example, clauses 2.4, 4.3 and 22 all impose obligations of good faith. The parties, by their express contract, have included a good faith obligation in respect of those provisions to which it expressly applied.
[33] Clause 22 of the contract provides:
22. Good Faith
Each Party agrees that it will act in good faith in complying with its obligations hereunder taking into account the purpose and background to this
Agreement, and will do everything that is reasonably necessary to carry out and give effect to this Agreement.
[34] It is significant, in my view, that the parties have limited the duty to act in good faith to those situations where the contract imposes an obligation. When one looks at the termination position, it is clear that there is no obligation involved but rather a right exercisable pursuant to the conditions set out in clause 12.
[35] In Vero Insurance New Zealand Ltd v Fleet Insurance & Risk Management
Ltd[7] it was said:
Parties to commercial contracts often exercise contractual powers for an ulterior motive. For instance, a right to cancel for breach will often be invoked for commercial reasons having nothing to do with the breach but rather because a party wishes to get out of the contract. In such a situation if the cancellation is on the grounds of a substantial breach and there is a right to cancel under the Contractual Remedies Act 1979, the motive for cancellation is irrelevant. It would be most surprising if that sort of right to cancel could be subject to the qualification that it must be exercised in good faith. A system of contract where the motives of parties exercising rights of cancellation for substantial breach of an essential term could be subject to scrutiny in the Courts could lead to chaos, with every defaulting party getting a second chance.
[36] Although his Honour referred to substantial breach and a right to cancel under the Contractual Remedies Act 1979 as being situations where a cancellation for an ulterior motive might be achieved that is because, without an express remedies clause, the right to cancellation will not exist. In the instant contract, however, there is an express remedies clause, being clause 12, which gives a right of termination. Mr Ingram referred me to a number of authorities where a term of good faith and fair dealing were found either to be terms of the contract or implied in the contract. None, however, deal with an express remedy provision which reserves a right to a party to bring a contract to an end.
[37] I reject the second matter advanced in support of the wrongful termination of the contract.
[38] I deal next with the proposition that a term should be implied in the contract requiring the breach to be material before termination could be exercised and implying that the right to terminate could only be exercised in good faith.
[39] This proposition can be answered very shortly. As I have accepted the defendant’s argument that the breach is not required to be material and the right to terminate for breach, in accordance with clause 12.2.1(b) is not subject to the obligation that it be exercised only in good faith, to imply a term to the contrary would simply be to conflict with an express term of the contract. That position can be reached without going to trial. The proposed implied term simply does not meet the five-point test in BP Refinery (WesternPort) Pty Ltd v President, Councillors and
Ratepayers of the Shire of Hastings.[8]
[40] The final aspect of the first cause of action is the allegation of waiver. More particularly, the plaintiff asserts that the defendant, with knowledge of the plaintiff’s breach of contract, cannot rely on the breach to terminate the contract.
[41] The first problem with this plea is it conflicts directly with clause 17 of the agreement. Clause 17 provides:
17. Waiver
No delay, neglect or forbearance by either Party in enforcing against the other any provision of this Agreement will be a waiver, or in any way prejudice any right, of that Party.
[42] Without commenting specifically on clause 17, Mr Ingram submitted that the issue of whether the defendant had affirmed the agreement in this case was a matter that should not be determined on a strike out basis, but should proceed to trial. He submitted that conduct inconsistent with cancellation may create an estoppel. He
referred to the Court of Appeal’s decision in McDrury v Luporini.[9] In that case the
court had to determine whether a lessor’s forfeiture was valid. The lessee’s had been in breach of a fertiliser covenant. The breach, however, was not a continuing breach. The landlord continued to invoice the tenant for rent right up until the lessors re-
entered. A Property Law Act notice was serviced. The tenants continued to deny any breach of the fertiliser covenant. The notice was not fulfilled and re-entry followed. The lessees contended that by accepting the rent the lessors had waived the breach if they had sufficient knowledge of it. The Court of Appeal held that if, with full knowledge of the breach and assuming the lessor had the right to forfeit, but nevertheless unequivocally indicates that the lease will not be forfeited, the law will hold the lessor to that choice by the doctrine of waiver. However, acceptance of the rent in the period prior to the issue of the statutory notice will not amount to an election not to forfeit. That is because no unconditional right to forfeit has arisen. Service of the notice makes it clear that the lessors were then asserting a right to forfeit if the notice was not complied with. The court held that a lessor should not be put in a position of having to decline to accept rent during the currency of a notice because the rent may never be forthcoming if the lessee fails to comply and the lease is forfeited.
[43] No foundation has been laid which would justify an estoppel in this case. There is no clear unambiguous representation or promise by the defendant that it would not terminate for breach of a resource consent condition. Nor has it been suggested to me what the representation might be, when it was made and in what circumstances and to whom.
[44] The breach here clearly is a continuing breach. A notice was issued. The plaintiff failed to comply with the notice. Indeed, the evidence is the plaintiff has still not complied with the notice. I conclude that there is no foundation for an estoppel argument.
[45] Whether this fourth aspect of the first cause of action is looked at from the point of view of waiver or estoppel, I conclude that there is no foundation for it, as these doctrines simply do not support this cause of action.
[46] Mr Ingram advanced a further alternative by way of a possible amendment to the first cause of action. That amendment, he submitted, would provide “in addition, or in the alternative, the defendant’s continued acceptance of product disentitled it from treating the contract as repudiated”.
[47] Mr Ingram submitted that that pleading is based on the Sale of Goods Act
1908, s 13(3).
[48] The proposed amendment will not assist the plaintiff’s case. The Sale of Goods Act 1908, s 13(3) only applies where the buyer has accepted the goods or part of them. This is a continuing supply. There has been no delivery or acceptance of the goods which would provide a basis for invoking the Sale of Goods Act 1908, s 13(3).
The second cause of action
[49] The plaintiff pleads, in paragraph 38 of the amended statement of claim:
38. At all material times, the Defendant was obliged to comply with clause 22 of the Contract which provided that it should act in good faith in complying with its obligations under the Contract and do everything reasonably necessary to carry out and give effect to the Contract.
[50] I have already referred at [33] to clause 22. I have already observed that clause 22 relates solely to complying with parties obligations under the contract by its express wording.
[51] The right to cancel is clearly not an obligation.
[52] Mr Branch drew attention to the fact that clause 12.4 provides that the plaintiff undertakes not to rely on clause 12.1 to effect an early termination for the purpose of supplying product to third parties. He noted that this was an example of a clause being specifically inserted to limit the exercise of the right to cancel the agreement. He submitted that, had the parties intended the good faith requirement similarly to restrict the right to terminate under clause 12.2, then the agreement would have expressly said so. But it does not.
[53] Mr Ingram referred me to Culverden Retirement Village Ltd v Hill.[10] In that case the court declined an appeal from a decision which had refused to strike out a
good faith cause of action. The respondents had granted the appellants an option to repurchase a unit in a retirement village if, amongst other things, the appellants determined in its absolute discretion that the respondents had breached any rule relating to the operation of the village.
[54] Mr Branch, in my view, correctly distinguished that decision. There was no notice of breach required. Had there been a notice of breach it could easily have been remedied.
[55] I have, in the analysis of the first cause of action, dealt with this issue as well and the comments that I recorded in that part of my judgment apply equally to this analysis. Neither counsel could find any authority which supports the view that a right of cancellation which accrues from a failure to remedy a breach within an agreed time can only be exercised in good faith.
[56] The clause giving the right to terminate is not made subject to the good faith clause. The termination clause does not create an obligation, it simply gives a right. I conclude that the second cause of action cannot succeed and there is no reasonable foundation for it.
The third cause of action
[57] Mr Branch properly recognised that the plaintiff’s claim for non-payment of a number of invoices that had been issued for product supplied was a distinct and separate matter and clearly must proceed to trial. The defendant’s pleaded answer to that is a claim of set-off which, as I have already recorded in this judgment, is denied in the reply statement of the plaintiff.
[58] However, rolled into the third cause of action is a separate and quite distinct matter.
[59] What is raised here is whether the plaintiff is entitled to be paid for the minimum amount of product in the year of cancellation. The plaintiff pleads that in the second year, that is, the year when cancellation occurred the defendant took
12,597.05 tonnes, leaving a shortfall of 22,402.95 tonnes. The plaintiff pleads that the obligation to pay the second minimum quantity accrued prior to the termination of the contract.
[60] The matter is not pleaded with sufficient particularity. However, Mr Ingram, in his submissions, relied specifically on clause 2.1 of the agreement. He submitted that the correct interpretation of that clause is that the plaintiff’s right to seek payment of the minimum amount of product in any year accrued at the commencement of the relevant year.
[61] Clause 2.1 and 2.2 of the agreement provide:
2. Supply and Purchase of Products
2.1 Envirosand Mercer agrees to sell to Perry, and Perry agrees to purchase from Envirosand Mercer, the following minimum amounts of products:
2.1.1 In the first year of this Agreement, 15,000 tonnes;
2.1.2 In each subsequent year, 60,000 tonnes.
provided that Perry shall not be obliged to purchase the amounts in clauses 2.1. and 2.12 and an appropriate adjustment will be made to the minimum amounts if in any year Envirosand Mercer is unable to produce the specified tonnages by way of consistent supply as a result of breakdown of equipment or plant or any other reason.
2.2 Perry agrees to pay Envirosoand Mercer for at least the minimum amount of Products in any year. In the event Perry takes less than the minimum in any one year (First Year), it will nevertheless pay Envirosand Mercer as if it had taken the minimum, and receive a credit against purchases in the following year (Second Year), for the difference between products paid for and products taken in the First Year. In the Second Year, Perry must take and pay for the minimum amount of Products for that year, and may take the Products paid for but not taken in the First Year without further charge.
[62] In response to the plaintiff’s assertion that the right to seek payment for the minimum amount of product for any one year accrued at the commencement year Mr Branch drew attention to the following:
b) Clause 2.2 makes it clear that if the defendant takes less than the minimum quantity then it will pay as if it had taken the minimum. That suggests that the obligation arises when the quantity taken is known and not before;
c) Clause 5 of the agreement sets out the basis on which payment for product taken is made. Clause 5.4 provides:
5. Accounting and payment
5.4 Envirosand Mercer shall render a tax invoice to Perry at the beginning of each month for the Products supplied in the preceding month. The invoice shall identify the total tonnage of Products supplied by Product type by reference to dispatch dockets produced for each transaction.
Clause 5.5 of the agreement provides:
5.5 Perry shall make full payment of the Base Price within the first 20 days of the month in which the invoice is rendered by Envirosand Mercer, except in the event of a disputed invoice, in which case Perry will pay any undisputed portion within the first 20 days of the month in which the invoice is rendered by Envirosand Mercer, and the parties agree to correct any errors or omissions in invoices, and in Perry’s case pay any balance owing following correction of any errors or omissions in invoices, as expeditiously as possible.
It follows from these two clauses that the obligation to pay arises only on the expiry of the first 20 days of the month in which the invoice is rendered; and
d) In fact invoices for the minimum quantity for year two were issued prior to cancellation.
[63] Mr Branch submitted that the plaintiff could not maintain an action for price under Sale of Goods Act 1908, s 50(2). He referred to Waterford Press Ltd v Dounsix Systems Ltd[11] and particularly reference in the judgment to the commentary in Gault on Commercial Law[12] where it is stated:
SG50.01 Action for the price
An action for the price of goods will exist only where the contract of sale is still on foot. If the contract has been rescinded (where the goods are resold or the buyer’s rejection is accepted by the seller), no right to sue for the price will exist. Rather, the seller will be limited to an action for damages.
[64] Mr Ingram’s response to this was to suggest that an amendment be made to the third cause of action by containing an alternative prayer for relief, being a claim for damages, particulars of which will be provided prior to the hearing.
[65] The amendment suggested by Mr Ingram might well answer the problem raised by the Sale of Goods Act 1908, s 50 but for one aspect. If the defendant’s notice cancelling the contract was, in fact, a wrongful repudiation then the plaintiff’s cancellation notice four days later would have entitled the plaintiff to claim damages. However, I found, in my analysis of the first cause of action that the defendant was entitled to cancel when it did. I therefore conclude:
a) That I accept Mr Branch’s analysis of the contract and the conclusion that there is no accrued right to payment of the minimum sums due in the second year at the time of cancellation;
b) There is no right to claim damages because the obligation to pay occurred post-cancellation; and
c) Those parts of the third cause of action dealing with the prayer seeking payment in respect of minimum quantity have no proper foundation.
Orders
[66] I order:
a) The first cause of action and prayer for relief, the second cause of action and prayer for relief, and paragraphs 25 to 40 and 44 to 52 and
that part of the prayer for relief which exceeds $77,632.80 in the third cause of action in the amended statement of claim be struck out;
b) The application for summary judgment is withdrawn;
c) A case management conference by telephone shall be held at 11:45am on 20 July 2010. The following matters will be addressed:
i) The pleadings;
ii) Discovery and inspection;
iii) The issues requiring resolution at trial;
iv) Possible transfer of the proceeding to the District Court;
v) Settlement and whether a mediation or a Judicial settlement conference should be ordered;
vi) If appropriate, trial duration, the fixing of a trial date and the making of any special trial directions that are required. Counsel shall file and serve memoranda dealing with these items two working days before the conference.
d) Costs are reserved but should be fixed. If counsel cannot agree, memoranda in support, opposition and reply shall be filed and served at seven-day intervals and on receipt of the reply memorandum the
file shall be referred to me for the fixing of costs on this application.
JA Faire
Associate Judge
[1]
Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at
267.
[2]
Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR
725.
[3]
Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at
566.
[4]
Apple Fields Ltd v New Zealand Apple and Pear Marketing Board HC
Wellington CP35/94, 21 April 1994.
[5] Whitman v Airways Corporation of New Zealand Ltd (1994) 8 PRNZ 155 (HC) at 158.
[6] Rice (t/a The Garden Guardian) v Great Yarmouth Borough Council [2003] TCLR 1.
[7] Vero Insurance New Zealand Ltd v Fleet Insurance & Risk Management Ltd HC Auckland CIV-
2007-404-1438, 21 May 2007 at [43] per Asher J.
[8] BP Refinery (WesternPort) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings
[1977] HCA 40; (1977) 16 ALR 363 (PC) at 376.
[9] McDrury v Luporini [1999] NZCA 309; [2000] 1 NZLR 652; (1999) 9 TCLR 278.
[10] Culverden Retirement Village Ltd v Hill HC Auckland CIV-2008-404-5281, 25 November 2008.
[11] Waterford Press Ltd v Dounsix Systems Ltd HC Christchurch CIV-2009-409-2973, 28 April 2010.
[12] Thomas Gault (ed) Gault on Commercial Law (Brookers, Wellington, 2010).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2010/1117.html