Volumex Nominees Limited v Attorney-General [2018] NZHC 647 (12 April 2018)

Last Updated: 23 April 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-895 [2018] NZHC 647

BETWEEN	VOLUMEX NOMINEES LIMITED Plaintiff
AND	THE ATTORNEY-GENERAL Defendant

Hearing:	21 March 2018
Appearances:	G M Ellingworth QC for the plaintiff H Wilson and M J Neill for the defendant
Judgment:	12 April 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] At the heart of this case is a humble comma.

[2] In a lease, the landlord and the tenant agreed that the latter would pay “... all charges payable in respect of the Premises for telephone, gas, electricity, and any other Tenant consumables ... supplied to and actually consumed on the Premises”. Does this mean, as the landlord submits, that the tenant is responsible for all charges for electricity “in respect of the Premises”, whether or not the electricity was “actually consumed on the Premises”, or does it mean, as the tenant contends, that its obligations for electricity charges are limited to those charges which are both “in respect of the premises” and “actually consumed on the Premises”?

VOLUMEX NOMINEES LIMITED v THE ATTORNEY-GENERAL [2018] NZHC 647 [12 April 2018]

Background

[3] Volumex Nominees Ltd (Volumex) is the owner of a seven-storey building situated at 60–62 Gill Street in New Plymouth.

[4] Prior to 1 September 2004, Volumex or one of its predecessors in title leased part or all of the building to the Ministry of Social Development (Ministry), or one or more of its operating branches. In the lead up to that date the parties were in negotiation over new leasing arrangements.

[5] Those negotiations were ultimately successful, and it is common ground that new leasing arrangements operated from 1 September 2004. That is so, notwithstanding that those arrangements were not formalised until 16 September 2011, when the parties executed two deeds of lease. Materially, the two deeds were in exactly the same terms. In this judgment, I will refer to them as “the lease”, and make no further reference to the fact that two deeds were involved.

[6] Pursuant to the lease, Volumex leased to the Ministry certain defined areas (Premises) within the building. The Premises leased changed over time. Although those changes appear to have been important in terms of the way things developed, in the end, nothing turns on them.

[7] The initial term of the lease was seven years. It contained three rights of renewal exercisable by the Ministry for further three year periods. The first and second of these, commencing, respectively, on 1 September 2011 and 2014, were exercised. The third was not. As a result, the lease came to an end on 31 August 2017.

[8] As at the commencement of these new leasing arrangements on 1 September 2004, the Ministry was the only tenant in the building, and it was the Ministry that organised the supply of power to the building and entered into a contract for supply with the supplier. Accordingly, the Ministry paid for all of the power supplied to the building.

[9] In time, Volumex leased areas in the building to other tenants. Towards the end of 2011, it became apparent to both Volumex and the Ministry that the latter was
paying for power supplied to the other tenants. Both parties recognised the need to regularise the position. As I understand it, the solution they agreed upon had three components. First, it was agreed that from 1 October 2011 Volumex would step into the Ministry’s shoes as the party to the contract for the supply of electricity to the building. Second, it was agreed that Volumex would install check meters for each tenancy and on-charge the cost of power recorded on these meters to the relevant tenants. Third, the parties appear to have agreed fairly readily on a methodology for calculating the amount of the Ministry’s overpayments relating to the areas leased to the other tenants. They settled on an amount of $217,121.89. They agreed that the Ministry would take a holiday from paying for power until it recovered that amount.

[10] In this way, by the end of May 2013, the Ministry had recovered the amount of
$217,121.89, and there was a residue of $5,410.66 to pay (ignoring the further issue that I am about to address).

[11] In the meantime, another issue had surfaced. It is this issue that is the subject of Volumex’ claim and application for summary judgment.

[12] The parties’ affidavit evidence puts different complexions on how and when this second issue arose. Volumex’ evidence describes it as having arisen as a discreet issue out of the blue after the parties had agreed on how the first issue was to be resolved. In contrast, the Ministry’s evidence suggests that the two issues were always at large between the parties. I am not convinced that anything turns on this.

[13] The second issue concerns what the parties refer to as “central plant”, for all intents and purposes the electricity said to have been consumed by the building’s primary heating, ventilation and air-conditioning plant (HVAC plant). The primary HVAC plant is apparently situated on the roof; not in any of the areas leased by Volumex to its tenants. I understand that in each of those areas there is secondary HVAC plant, power for which is picked up by each tenant’s check meter. But essentially it is the power said to have been consumed by the primary HVAC plant which is at issue here.
[14] Apparently as a result of this second issue, and the inability of the parties to resolve it, the Ministry did not pay for any further power down to the termination of the lease on 31 August 2017.

[15] Volumex calculates the value of the power consumed by the primary HVAC plant which it contends is payable by the Ministry at $405,645.64. It is that amount, together with the amount said to have remained due as at the end of May 2013,
$5,410.66, which total $411,056.30, rounded down to $411,000, that is claimed by Volumex in this proceeding.

[16] The above description of the factual background is adequate for the purposes of framing the issue for determination.

Issue

[17] Ultimately, the issue that must be determined in this proceeding is whether, on a proper construction of the lease, Volumex is entitled to recover the $405,645.64 it claims is owed to it by the Ministry in respect of power.

[18] In addressing that, I will deal with matters under the following headings:

(a) Summary judgment proceedings;

(b) Approach to contractual interpretation;

(c) Wording of the lease;

(d) The competing interpretations;

(e) Discussion;

(f) Conclusion; and

(g) Subsidiary matters.

Summary judgment proceedings

[19] This is an application for summary judgment by Volumex as the plaintiff pursuant to pt 12 of the High Court Rules 2016.

[20] The principles which apply to such applications are well settled. They can be found stated in any number of cases of high authority. Counsel referred me to the Court of Appeal’s judgment in Krukziener v Hanover Finance¹, and it is sufficient to quote the relevant paragraphs from that judgment, which capture the essential issues to be resolved in any application by a plaintiff for summary judgment:

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

Under r 141A the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.

Approach to contractual interpretation

[21] It is necessary to focus on this issue for several reasons. The mere fact that the lease between the parties commenced on 1 September 2004, but was not formalised for seven years, means that more than the usual amount of documentation predating the execution of the lease passed between the parties. The affidavit evidence filed and served by both parties canvases the negotiations that commenced in late 2003. What appears to be a good proportion of the exchanges to which these negotiations gave rise, and the correspondence which took place after the dispute arose between the parties, was in evidence before me. The Ministry’s affidavit evidence in particular

¹ Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]–[27].

went beyond what I would normally expect to see in describing these matters. The affidavit evidence of the Ministry’s primary deponent, Mr Craig Starnes, who is one of its senior property managers, included explanations of what the Ministry was seeking to achieve in the negotiations and the positions adopted by both parties in those negotiations, and offered views as to the interpretation of provisions in the lease.

[22] In relation to all this, Mr Ellingworth submitted that the “most basic principle in relation to the interpretation of contracts is that the court applies an objective approach to ascertain what the parties must be taken to have intended”.

[23] He referred to the Supreme Court’s decision in Firm PI 1 Ltd v Zurich Australian Insurance Ltd where the Supreme Court said: ²

Given the issues in the case, it is not necessary that we discuss the approach to contractual interpretation in any detail. It is sufficient to say that the proper approach is an objective one, the aim being to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. This objective meaning is taken to be that which the parties intended. (Footnotes omitted.)

[24] Mr Ellingworth also referred to the Court of Appeal’s decision in Ansley v Prospectus Nominees Unlimited, where the Court of Appeal made it clear that a court could only rely on background material known to both parties in the negotiations at the relevant time. ³

[25] Returning to the Supreme Court’s decision in Firm PI 1 Ltd, he referred to the Court’s description of the proper approach, which was in these terms:⁴

While the context is a necessary element of the interpretive process and the focus is on interpreting the document rather than particular words, the text remains centrally important. If the language at issue, construed in the context of the contract as a whole, has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator of what the parties meant. But the wider context may point to some interpretation other than the most obvious one and may also assist in determining the meaning intended in cases of ambiguity or uncertainty. (Footnote omitted.)

² Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147 at [60].

³ Ansley v Prospectus Nominees Unlimited [2004] NZCA 14; [2004] 2 NZLR 590 (CA) at [37].

⁴ Firm PI 1 Ltd, above n2, at [63].

[26] Mr Ellingworth submitted that evidence as to the course of negotiations is only admissible to the extent that it assists the Court in identifying the parties’ joint objective intentions (as opposed to the subjective intention of any one party). In this regard, he referred to various passages from the Supreme Court’s decision in Vector Gas Ltd v Bay of Plenty Energy Ltd.⁵ I will refer only to the judgment of Tipping J, who said:

The ultimate objective in a contract interpretation dispute is to establish the meaning the parties intended their words to bear. In order to be admissible, extrinsic evidence must be relevant to that question. The language used by the parties, appropriately interpreted, is the only source of their intended meaning. As a matter of policy, our law has always required interpretation issues to be addressed on an objective basis. The necessary inquiry therefore concerns what a reasonable and properly informed third party would consider the parties intended the words of their contract to mean. The court embodies that person. To be properly informed the court must be aware of the commercial or other context in which the contract was made and of all the facts and circumstances known to and likely to be operating on the parties’ minds. Evidence is not relevant if it does no more than tend to prove what individual parties subjectively intended or understood their words to mean, or what their negotiating stance was at any particular time.

Although subjective evidence would be relevant if a subjective approach were taken to interpretation issues, the common law has consistently eschewed that approach. The common law focuses strongly on the agreement in its final form as representing the ultimate consensus of the parties. Hence it is regarded as irrelevant how the parties reached that consensus. To inquire into that process would not be consistent with an objective inquiry into the meaning of a document which is generally designed to be the sole record of the final agreement. A party cannot be heard to say — never mind what I signed, this is what I really meant. (Footnotes omitted.)

[27] Finally, Mr Ellingworth referred to the relatively recent decision of the UK Supreme Court of Arnold v Britton⁶ and in particular to the judgment of the then President, Lord Neuberger, which, as Mr Ellingworth suggests, may indicate that, in the United Kingdom, the courts are becoming more stringent about excluding evidence that does not meet the requirements described in the New Zealand cases to which I have referred.

[28] Mr Ellingworth summarised his submissions in these terms:

⁵ Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [19]–[20].

⁶ Arnold v Britton [2015] UKSC 36.

(a) the courts are not concerned with subjective views or statements of intention expressed in the course of pre-contractual negotiations. Evidence of this kind is not merely unhelpful, it is inadmissible;

(b) evidence of background facts is inadmissible, unless the information was known to both parties;

(c) although context can be significant, what matters most are the words that the parties have deliberately chosen to use in their agreement, especially where the contract is a clearly worded, formal document which has resulted from a process of structured negotiation;

(d) hindsight and ex post facto reasoning have no place in the interpretation of contracts.

[29] Mr Wilson did not take issue with that summary.

[30] I adopt it as a fair description of the law as it stands.

Wording of the lease

[31] Bearing those principles in mind, I turn to the lease.

[32] Both Mr Ellingworth and Mr Wilson sought to describe the lease in various ways. I am not convinced that it is helpful to use descriptors such as “standard”, “gross” or “net”. All such terms tend to do is give rise to expectations on the part of the reader. In my judgment, a sounder approach is just to go to the words that the parties used.

[33] Nothing about the lease in this case strikes me as being especially unusual. It begins by identifying the parties. The demise follows, by which the landlord leases to the tenant and the tenant takes on the lease:

... the premises and carparks (if any) described in Items 3 and 5 respectively of the First Schedule together with the right to use:

(a) the Landlord’s Fixtures and Fittings; and
(b) the Common Areas (if any);

for the term and from the commencement date set out in item 6 of the First Schedule and at the annual rent (subject to review if applicable) as set out in Item 7(a) of the First Schedule and otherwise on the terms and conditions set out in the Schedules listed as Item 10 of the First Schedule which all form part of this Lease.

[34] The execution clause follows, and then various schedules.

[35] The First Schedule contains a series of what are in effect definitions. I was referred to four.

[36] In Item 3, the term “Premises” is defined as:

Those parts of the Building being part of the ground floor, (excluding common areas), the whole of the first and fourth floors, and part of the third floor as shown edged in pink on the plans attached as the Third Schedule, together with a proportionate share of the common corridor on the ground floor shown edged in green on the ground floor plan attached as the Third Schedule (“Ground Floor Corridor”), having a total lettable area of 2,744.10 m² (“the Premises”).

[37] Item 4 lists the Landlord’s Fixtures and Fittings as:

(a) Heating, chilling and ventilation plant and equipment;

(b) Suspended ceilings;

(c) Light fittings;

(d) Sprinklers;

(e) Lifts;

(f) Toilet facilities (excludes ground floor public toilet);

(g) Auto Doors (2).

[38] Item 10 identifies the schedules and plans that the parties have agreed will form part of the lease. I do not regard it as necessary to quote the list which follows.

[39] Item 12 defines the Tenant’s Fixtures and Fittings in the following terms:

All fixtures and fittings situated in the Premises not forming part of the Landlord’s Fixtures and Fittings as set out in Item 4.

[40] Schedule 2 begins with a lengthy clause relating to the rental and its review.

[41] The clause which I perceive to the most critical, cl 3, follows. It is headed “Tenant’s other outgoings” and provides:

3.1 The Tenant shall pay all charges payable in respect of the Premises for telephones, gas, electricity, and any other Tenant consumable (but excluding any charges for the supply of water) supplied to and actually consumed on the Premises.

3.2 The outgoings referred to in clause 3.1 if due to the Landlord shall be payable from time to time as the Landlord may reasonably require.

[42] In a sense, the mirror image of cl 3 is cl 7, which is headed “Landlord to pay other outgoings” and provides:

7.1 The Landlord shall pay all outgoings in respect of the Land, Premises and the Building (including its services) of which the Premises form part, other than those outgoings payable by the Tenant under the provisions of clause 3.

[43] I was referred to cl 9.3, which appears under the major heading “Maintenance and Care of the Building and the Premises” and the minor heading “Miscellaneous Obligations”. I will not quote the clause. The essential point for present purposes is that it provides that it is the landlord’s responsibility to maintain the primary HVAC plant.

[44] Clause 33 is headed “Air-conditioning Refrigerant” and provides:

33.1 Should any air-conditioning system Installed on the Premises by the Landlord use HCFC as its refrigerant and should either HCFC become impossible to procure or its use become illegal, then the Landlord will promptly, at the Landlord’s cost, modify the air-conditioning system to use refrigerants other than HCFC.

[45] Clause 36 is a definitions section and headed as such. I was referred to the introductory passage of cl 36.1 which reads: “In this lease unless a contrary intention appears ...” and to sub-clauses (e) and (g) which read as follows:

(e) “the Landlord’s Fixtures and Fittings” means those items described in Item 4 of the First Schedule situated in the Premises and owned and maintained by the Landlord as at the commencement of the Lease or any time thereafter.

(g) “the Premises” means the premises described in Item 3 of the First Schedule and shall be deemed to include such floor coverings, curtains, blinds, ceilings, light fittings, air conditioning and other equipment provided by the Landlord from time to time to service the Premises, together also with the Landlord’s Fixtures and Fittings.

[46] Against that background, I turn to the arguments advanced on the parties’ behalves.

The competing interpretations

[47] For Volumex, Mr Ellingworth’s primary submission is that there are two parts to cl 3.1 of the First Schedule, separated by the comma that appears after the word “electricity”. In the first part, he submits, the Ministry agrees to pay for consumables “in respect of the Premises”, which he contends includes a proper proportion of the power costs associated with running the primary HVAC plant. He submits that it is unnecessary to go beyond that, because the second part of the clause, that part which appears after the comma, relates to “ other Tenant consumables” not covered by the first. Thus, the argument continues, it is irrelevant to the Ministry’s liability for those consumables covered by the first part, whether or not they are “actually consumed on the Premises”.

[48] Mr Ellingworth further submits that if I accept that argument, then it is unnecessary for me to go further and consider the parol evidence as to the circumstances in which the parties arrived at their agreement. In short his submission is that there is no ambiguity to resolve, and therefore no need to consider that evidence.

[49] For the Ministry Mr Wilson began by referring me to Mr Starnes’ evidence to the effect that, at the time of the negotiations between Volumex and the Ministry towards the end of 2003, the Ministry was negotiating — both in relation to this proposed leasing arrangement and more widely — with a view to moving away from net rental arrangements towards gross rental arrangements to assist with its budgeting. That, it appears to me, is an example of evidence as to one party’s subjective intention to which it would be wrong to have regard.
[50] Mr Wilson then referred me to a letter to Volumex from the Ministry dated 10 December 2003 written in the course of the parties’ negotiations, which specifically addressed operating expenses in the following terms:

All operating expenses including Local Body rates (general and water), repairs and maintenance of building exterior, common areas and central plant, etc, are included in the gross rental. The Tenants will be responsible for all utility costs being power and internal cleaning, telephone etc. The metering of electricity and liability for consumption has not been fully investigated or resolved. Under the new lease, you will be responsible for common area and central plant consumption. We suggest that the meter would be in the owners name with electricity recharged based on check meter consumption of the electricity cost actually incurred by you. MSD currently have a bulk electricity contract to supply this and other buildings.

[51] At the foot of the same letter, under the heading “Acceptance”, the following appears:

Please confirm your acceptance of all of the above points by signing below. You advised that you now have authority to sign on the owners behalf. Upon final agreement being reached, both MSD and CYF will need to obtain appropriate approvals. Instructions to the Valuers can wait until the New Year.

[52] Precisely how far the first paragraph takes the argument, I am unclear. Certainly the Ministry was, in this paragraph, saying that it wished the landlord to be responsible for electricity consumption associated with “common area and central plant consumption”, which no doubt includes the primary HVAC plant. But, in the same paragraph, the Ministry accepts that as the tenant it is to be responsible for “all utility costs” including “power”, and acknowledges that the parties have not reached a final position in relation to such things as metering.

[53] In my judgement, that paragraph does nothing to shed light on the joint intention of the parties.

[54] As to the acceptance clause, Mr Wilson submitted that, as Volumex did not raise any specific objection to any of the matters raised in the letter and the parties did not execute a formal agreement until 16 September 2011, they should be taken to have operated on the basis set out in that letter between those times.
[55] The difficulty with that argument is that subsequent correspondence, including the very next item in the agreed bundle of documents, a further letter to Volumex from the Ministry dated 5 August 2004, indicates that a draft of the proposed deed of lease was in circulation by that date, which included cl 3.1 in the terms ultimately executed.

[56] Mr Wilson then referred me to a report dated 15 November 2011, apparently prepared for the Ministry by an organisation by the name of “Smart Power”. The Ministry appears to have commissioned this report as part of the exercise of determining how much it was entitled to reclaim in respect of electricity costs paid for the building during the time when there were other tenants until the end of September 2011, when the parties’ new arrangements regarding electricity came into force.

[57] The first paragraph of the report, headed “Introduction”, says:

The current MSD/CYF leases started on 1 September 2004 for 5 of the 7 floors in the building. MSD has paid all the electricity invoices for the whole site from that time to 30 September 2011. From 1 October 2011, the owner has had the revenue meter transferred into its name.

The Agreement to Lease and Deeds of Lease stipulate that the landlord would be responsible for the electricity for common area and central plant.

MSD has requested Smart Power to calculate the Landlords portion of the electricity costs for the building.

Smart Power has a record of all electricity invoices over the above period. Total cost for the site has been $874,508.18 (GST excl) or $987,026.05 (GST incl) (Smart Power also has access to all the metered half hour data for the site.

[58] If the Ministry gave instructions to Smart Power prior to the preparation in this report, then that introductory section no doubt indicates that the Ministry — or at least one or more officials within the Ministry — believed that the lease provided that Volumex would be responsible for electricity consumed in running the primary HVAC plant. But it is not obvious to me how that is of assistance in terms of determining what the lease says.

[59] As already said, the issue with which this case is concerned arose towards the end of 2011. The documentation in the agreed bundle of documents that commences
at that time is dominated by the increasingly strident positions being taken by the parties, directly between themselves, and through their solicitors and other advisers. I have not found this at all helpful in reaching a view about the proper interpretation of the lease.

[60] Mr Wilson advanced other arguments directed at persuading me that there are strong arguments against the construction of the lease contended for by Volumex. I do not need to canvas these here. In the end, Mr Wilson returned to cl 3 and submitted that the “clear and unambiguous” meaning of cl 3.1 is that the Ministry is only liable for charges for electricity that are “... supplied to and actually consumed on the Premises”, which he argued excluded the cost of the electricity used to run the primary HVAC systems because of its physical location outside the Premises leased by Volumex to the Ministry.

Discussion

[61] The serial or Oxford comma on which Mr Ellingworth places emphasis does not in my view have the grammatical effect of splitting the clause into two separate categories of charges (charges payable in respect of the premises for telephone, gas and electricity, on the one hand; and other consumables supplied to and actually consumed on the relevant tenant’s premises on the other). Rather, the view I take is that on a straight forward construction of the clause it is addressing charges for all consumables, particularised as telephone, gas, electricity and other changes, so that all consumables for which the Ministry is responsible under this clause must be both “in respect of Premises” and “supplied to and actually consumed on the Premises”.

[62] The interpretation Mr Ellingworth presses upon the court would require the relevant section of the clause, instead of reading “for telephones, gas, electricity, and any other Tenant consumables”, to read “for telephones, gas and electricity, and any other Tenant consumables”.

[63] Mr Ellingworth submits that even if the Ministry is only responsible for charges for consumables that are both “payable in respect of the Premises” and “supplied to and actually consumed on the Premises”, Volumex is still entitled to claim for the electricity used to power the primary HVAC plant (and any comparable central
plant) because the definition of the term “Premises” in cl 36.1(g) concludes “... together also with the Landlord’s Fixtures and Fittings”.

[64] So, the argument goes, to the extent that the Ministry is only obliged to pay for charges for consumables which are “in respect of” and “actually consumed on” the “Premises” under cl 3.1, that clause is defined so as to include the Landlord’s Fixtures and Fittings, which includes the primary HVAC plant. There are at least three interrelated difficulties with this argument:

(a) first, there are, as already outlined, effectively two definitions in the lease of the term “Premises”. The first of these is Item 3 in the First Schedule, which makes no reference to Landlord’s Fixtures and Fittings;

(b) second, the definition in cl 36.1(e) of the Landlord’s Fixtures and Fittings refers only to such fixtures and fittings as are contained in the Premises;

(c) third, to the extent that there is a circularity in the apparent conflict between sub-cls 36.1(e) and (g), it must at least be arguable that that is to be resolved on the basis that the definition of premises to be leased by the landlord to the tenant included only such landlord’s fixtures and fittings as are contained within the physical area being leased.

Conclusion

[65] On the basis of the arguments presented on this summary judgment application, I am not satisfied that Volumex can discharge the onus of establishing that the Ministry has no defence to the claim, or that there is no real question to be tried.

[66] First, for the reasons given above, I do not accept that the interpretation of the lease contended for on Volumex’s behalf is the only possible, or even the preferable, interpretation.
[67] Second, even if I had concluded that the plaintiff were able to discharge the onus of establishing that there was no defence to its claim, I would only have been prepared to grant summary judgment in respect of liability. This is because the affidavit evidence as to quantum, which was not the focus of detailed argument at the hearing, does not seem to me to provide a sufficiently robust basis for reaching a conclusion as to quantum. I will only mention one aspect of this evidence. In his affidavit, Volumex’ director, Mr Yarrow, explains how the claim was quantified. However, he does not explain whether, or the extent to which, electricity said to have been consumed in powering the primary HVAC plant has been allocated amongst three categories of space within the building: the space occupied exclusively by the landlord; the space constituting common areas; and the space — or spaces — leased to particular tenants. It seems to me that a somewhat more refined analysis would be necessary before it would be possible accurately to calculate what proportion of the total electricity charges are properly chargeable to the Ministry in respect of the period 1 September 2004 to 31 August 2017.

[68] On those bases, the plaintiff’s application for summary judgment is dismissed.

Subsidiary matters

[69] If there are any costs issues that counsel are unable to resolve, then they may refer them to me by memorandum.

[70] The Registrar is directed to liaise with counsel in order to set a date for a case management conference with a view to setting this matter down for trial.





Associate Judge Johnston

Solicitors:

Yu Lawyers, Auckland for plaintiff

Kensington Swan, Wellington for the defendant