Axiam Engineering Limited v JB Sales International Limited HC Wanganui CIV-2009-483-349

[2011] NZHC 294

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2009-483-349

BETWEEN  AXIAM ENGINEERING LIMITED Plaintiff

ANDJB SALES INTERNATIONAL LIMITED Defendant

Judgment:      6 April 2011

JUDGMENT OF DOBSON J

[1]      The plaintiff has sought a short fixture this week for the purpose of formally proving its claim against the defendant company.  An affidavit setting out the evidence on which the plaintiff would seek judgment against the defendant dated 1 April 2011 has recently been filed.   In addition to seeking a fixture, solicitors for the plaintiff have invited the Registry to refer the file to me with a view to my considering whether I am prepared to order formal proof of the plaintiff’s claim on the papers, without the need for an appearance.

[2]      The 1 April 2011 affidavit confirms that the defendant was put into voluntary liquidation  on  30  August  2010  and  the  liquidators  subsequently  appointed  have consented to the plaintiff proceeding to obtain judgment for its claim, together with costs and interest.

[3]      A review of the file shows that until the defendant was liquidated, solicitors and counsel on its behalf were disputing the proceedings.   An application for summary judgment was successfully opposed in May 2010.   A brief perusal of the pleadings indicates that the plaintiff was the supplier to the defendant of certain manufactured metal components for machines, with the defendant disputing the quality of what was provided, and pleading that it had suffered losses as a result of inadequacies in the items

manufactured by the plaintiff.

AXIAM ENGINEERING LIMITED v JB SALES INTERNATIONAL LIMITED HC WANG CIV-2009-483-349

6 April 2011

[4]      All of those disputes are now in the past.   The affidavit in support of formal proof provides the detailed invoices and other documentation to support the components of the plaintiff’s claim.  It is predictable that if the matter continued to be contested, then irrespective of other issues, there would be a contest over the plaintiff’s entitlement to recover for significant elements of the sums now claimed.   There are, for example, claims for some $212,000 for “additional costs” and then for staff redundancies.

[5]      In the context of an application for formal proof, there is no practical point in the Court attempting to assess, on the basis of information and documentation tendered by the plaintiff, whether any of these elements of the claim might be successfully contested.

[6]      Accordingly, I accept the suggestion of counsel for the plaintiff that there is little point in a hearing.   I am satisfied that the plaintiff has substantiated the amounts it claimed  in  the  1 April  2011  affidavit,  acknowledging  immediately  that  a  different perspective might apply, were liability for the sums to be contested.   It is therefore appropriate to grant judgment for the extent of the claim.

[7]      In  a  second  memorandum  seeking  judgment  dated  1  February  2011,  the plaintiff’s counsel also seeks judgment for quantified costs.   I order costs as sought, except for the removal of the time allocations for items 5.1, 5.3 and 5.4 relating to the unsuccessful  summary judgment  (2.1  days),  and  deduction  of whatever  part  of the disbursements sought in respect of filing fees related to the summary judgment application.  On the same ground, I would reduce the photocopying allowance to 350 pages (from 655 pages claimed).

[8]      In  the  circumstances,  I  am  not  prepared  to  order  pre-judgment  interest  and interest will run at the Judicature Act rate from the date of this judgment on formal proof.

Dobson J

Solicitors:

Horsley Christie, Wanganui for plaintiff

D G Law, Panmure, Auckland for defendant