BBC Technologies Ltd v Sociedad Agricola Topagri LTDA

[2014] NZHC 2386

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-1306 [2014] NZHC 2386

BETWEEN

BBC TECHNOLOGIES LIMITED

Plaintiff

AND

SOCIEDAD AGRICOLA TOPAGRI LTDA

Defendant

Hearing:	30 September 2014
Appearances:	M D Pascariu for the Plaintiff No appearance by or on behalf of the Defendant
Judgment:	30 September 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 30 September 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      MinterEllisonRuddWatts, Auckland

BBC TECHNOLOGIES LTD v SOCIEDAD AGRICOLA TOPAGRI LTDA [2014] NZHC 2386 [30 September

2014]

[1]      This  proceeding  came  before  the  Court  today  for  formal  proof  in  the following circumstances.   The proceeding  was  set  down for a five day trial  to commence on 29 September 2014.   On 16 July 2014 Duffy J granted Brookfields leave to withdraw as the solicitor on the record for the defendant.

[2]      The  defendant  having  failed  to  comply  with  the  directed  timetable,  on

3 September  2014  at  the  plaintiff’s  request  Duffy  J  made  the  following  trial

directions:

(a)      Leave be granted to the defendant to file and serve briefs of evidence including a list of the documents it wishes to include in the common bundle of documents by 8 September 2014;

(b)If the defendant fails to comply with the above order, the 5-day trial fixture commencing on 29 September 2014 be vacated and a two hours replacement fixture be allocated for a formal proof hearing; and

(c)      Pursuant to r 9.56 of the High Court Rules, leave be granted to the plaintiff to adduce evidence at the hearing by affidavit, being the evidence filed in this proceeding in support of the summary judgment application.

[3]      The defendant having failed to take the steps referred to in (a), the matter now proceeds by way of formal proof.

The applicable procedure

[4]      Rule 15.9 which provides for formal proof of various categories of claims relevantly states:

15.9     Formal proof for other claims

…

(4)       The  plaintiff  must,  before  or  at  the  formal  proof  hearing,  file affidavit evidence establishing, to a Judge's satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.

[5]      I accept the plaintiff’s submission that, as is the case under r 10.7 (where a plaintiff appears and the defendant does not), the plaintiff is only required to prove a cause of action so far as the burden of proof lies on the plaintiff.  The plaintiff is not required to engage with any matters of affirmative defence, set-off or counter-claim.

The plaintiff ’s claim

[6]      The  plaintiff  seeks  payment  of  the  amount  outstanding  under  various contracts for the supply to the defendant of agricultural equipment subsequent to

11 January 2008.

[7]      Prior to that time the plaintiff (as supplier) and defendant (as distributor) had been parties to an agreement made on or about 11 January 2006 under which the parties agreed that the defendant was to distribute the plaintiff’s products in Chile on an agency basis.  That agreement, which was to remain in force for two years from the date of execution, came to an end in accordance with its terms on or about

11 January 2008.

[8]      The parties then entered into negotiations for the incorporation of a joint venture in Chile but that did not come to fruition.  The parties then entered into a series  of  individual  order  by order  supply contracts  for  the  sale  of  agricultural equipment.   In his affidavit dated 18 September 2012 in support of a summary judgment application Mr G A Furniss explained the basis of those supply contracts:

These supply contracts were entered into on the following basis:

(a)       BBC would provide its pricing list to Topagri on a yearly basis.

(b)       From  time  to  time,  Topagri  would  place  purchase  orders  for equipment with BBC.   These orders would include references to price and the technical characteristics of the equipment that Topagri wished to purchase.

(c)       Each purchase order set out the recommended retail price of the equipment as well as the price at which BBC was to sell the same to Topagri.  Generally, the equipment was sold to Topagri at a discount of 20% off the recommended retail price.

(d)       If the purchase order was accepted by BBC, the equipment was then supplied to Topagri together with a customs invoice setting out in detail the products supplied and the price to be paid.

(e)       Topagri would then pay the purchase price to BBC on the terms expressly agreed with BBC from time to time.

[9]      Pursuant to the supply contracts the plaintiff supplied the defendant with the equipment described in the table below.  The third column records the purchase price of the equipment supplied.  The fourth column records the balance outstanding after taking into account either part-payments made by the defendant or, in the case of equipment sold back to the plaintiff by the defendant, the net amount owing after deducting the resale price.   As at 22 September 2011 the defendant had failed to

make payment of the amount of US$982,300 to the plaintiff.

Date	Product supplied	Purchase price (USD)	Amount outstanding (USD)
13 November 2009	1 Soft Sorta	$63,200	$48,700
15 September 2010	1 Fill by Weight	$86,400	$66,400
	2 Soft Sorta	$130,400	$130,400
29 September 2010	1 Fill by Weight	$94,400	$74,400
15 October 2010	3 Fill by Weight	$259,200	$239,200
	1 Eliminator 9.55mm	$9,600	$9,600
28 October 2010	2 Fill by Weight	$172,800	$172,800
5 November 2010	1 Fill by Weight	$86,400	$86,400
9 December 2010	2 Soft Sorta	$130,400	$63,000
22 December 2010	1 Fill by Weight	$86,400	$86,400
Airfreight Surcharge	$5,000	$5,000
Total	$1,124,200	$982,300

[10]     Mr Pascariu carefully reviewed the circumstances relating to each of the supply contracts by reference to the buying orders and customs invoices which were explained in and annexed to the affidavit of Mr Furniss.   I am satisfied that that material demonstrates that the amounts shown in the fourth column of the chart were unpaid by the defendant.

[11]     The  plaintiff  acknowledges  that  on  or  about  23  September  2011  and

6 October  2011  respectively  the  defendant  made  two  further  payments  totalling

US$100,000 in reduction of the sum outstanding.   Following those payments the

sum of US$882,300 remained due and owing to the plaintiff.   That was the sum sought in the statement of claim.

[12]     However in addressing the plaintiff’s application for judgment it is necessary to take into account the fact that on the plaintiff’s application for summary judgment Associate Judge Osborne in his  decision of 11  June 20131  granted the plaintiff judgment against the defendant in the sum of US$144,001.10.  That judgment was upheld by the Court of Appeal.2

[13]     Consequently the amount for which the plaintiff seeks judgment today is

US$738,298.90.  I grant judgment to the plaintiff in that sum.

[14]     The plaintiff also seeks interest under s 87 of the Judicature Act 1908 from

27 October 2011 (being the date of the plaintiff’s demand) to today.  I award interest in the sum of US$108,017.52 being interest at 5% on US$738,298.90 for that period.

[15]     The plaintiff seeks costs on a 2B basis.   Mr Pascariu agreed to file a costs memorandum within a week in order to identify the costs which are sought separate from those relating to the summary judgment application which have already been

provided for in the decision of Associate Judge Osborne.

Brown J

1      Sociedad Agricola Topagri Ltda [2013] NZHC 1375.

2      Sociedad Agricola Topagri Ltda v BBC Tecnologies Ltd [2014] NZCA 253.