As Base Limited v IMI Developments Limited - [2017] NZHC 1017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-348 [2017] NZHC 1017

BETWEEN
AS BASE LIMITED

First Plaintiff

SCOTT BASE LIMITED Second Plaintiff

AND

IMI DEVELOPMENTS LIMITED First Defendant

ROTOTUNA VENTURES LIMITED Second Defendant

GRAEME MATANGI Third Defendant

CONTINUED OVERLEAF

Hearing: 5 April 2017

Appearances:

Mr S Ma-Ching for Plaintiffs
Mr Cornege for Defendants

Judgment:

18 May 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
18.05.17 at 11 a.m., pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

AS BASE LIMITED & Anor v IMI DEVELOPMENTS LIMITED & Anor [2017] NZHC 1017 [18 May 2017]

ANDTRIG GROUP LIMITED Fourth Defendant

TRIG HOLDINGS 2014 LIMITED Fifth Defendant
TRIG DEVELOPMENTS (2011) LIMITED Sixth Defendant
KVM DEVELOPMENTS LIMITED Seventh Defendant
3GNT LIMITED Eighth Defendant
GARY JOHN ILTON Ninth Defendant
GARY JOHN ILTON AND KAREN ILTON AS TRUSTEES OF THE ILTON BUSINESS TRUST
Tenth Defendant
GREGORY NEAL ILTON Eleventh Defendant
GREGORY NEAL ILTON AND VANESSA KAY MATANGI AS TRUSTEES OF THE G & V ILTON BUSINESS TRUST
Twelfth Defendants
GRAEME SELWYN MATANGI, MELISSA BRIDGET MATANGI AND WAIRAU TRUSTEE LIMITED AS TRUSTEES OF THE MGM TRUST
Thirteenth Defendants

[1] This is an application for summary judgment in which the plaintiffs bring claims for monies advanced to the various defendants.1 There are three causes of action. The defences which the defendants raise are discussed in the course of this judgment.

Principles

[2] Mr Cornegé for the defendant submitted that the summary judgment application ought to be determined as follows:2

2.1The Court will be familiar with the principles which apply on an application for summary judgment. They are conveniently summarised by the Court of Appeal in Krukziener v Hanover Finance Limited:

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 [1987] 1 NZLR 1 (CA) at 3. 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 (PC) at
341. 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 Corporation Ltd v Patel (1987)
1 PRNZ 84 (CA).

[3] Mr Ma Ching, counsel for the plaintiffs, did not disagree with that approach and I consider it the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading As Base Limited v IMI Developments Limited

Details

AGLC: As Base Limited v IMI Developments Limited [2017] NZHC 1017
Case: [2017] NZHC 1017
Decision Date: 18 May 2017

CaseChat Overview and Summary

This is an application for summary judgment in which the plaintiffs bring claims for monies advanced to the various defendants. There are three causes of action. The defendants dispute that anything is owed and summarise their defence in terms that there are arguable defences to each of the claims. The first defence is that there was never a loan to KVM. The second defence is that the IMI and Matangi loans have been repaid in full. The third defence is that it would be inequitable for the Scott entities to recover against the Trig Group given the failure to fund KVM through to resource consent stage, and the interconnected nature of the parties. The court found that there were arguable defences to the claims and dismissed the application for summary judgment.

Orders