Big Hammer Earth Works Limited v Agri Partners Limited
[2025] NZHC 1019
•20 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1235
[2025] NZHC 1019
BETWEEN BIG HAMMER EARTH WORKS LIMITED
First Plaintiff
HAMISH JEFFREY WILSON and MARIE- HELENE WILSON
Second Plaintiffs
AND
AGRI PARTNERS LIMITED
First DefendantCHRISTOPHER JOHN WALTER RUNCIMAN
Second Defendant
BENJAMIN CHARLES RUNCIMAN
Third Defendant
Hearing: 18 November 2024 Appearances:
AM Swan for the First and Second Plaintiffs GC Collecutt for the First Defendant
T Nelson for the Second and Third Defendants
Judgment:
20 May 2025
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 20 May 2025 at 10.30 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Webster Law, Auckland Skeates Law Limited, Auckland
Powle & Hudson Lawyers, Auckland
BIG HAMMER EARTH WORKS LTD v AGRI PARTNERS LTD [2025] NZHC 1019 [20 May 2025]
Introduction
[1] The plaintiffs, Big Hammer Earth Works Limited and Hamish and Marie-Helene Wilson, are seeking summary judgment against the defendants, Agri Partners Limited and Christopher and Benjamin Runciman for $1,625,000. This figure is made up of $1,100,000 paid to purchase shares in Agri Partners (Share Purchase Contract) plus $525,000 for earth moving services carried out by Big Hammer for Agri Partners at its gold mine on the West Coast of the South Island. The share transfer has not yet taken place.
[2] The plaintiffs say that a settlement deed signed by all parties on 26 February 2024 (Settlement Deed) is an acknowledgement that the defendants are indebted to the plaintiffs for the amount claimed and that the Deed can be relied on to establish or evidence the existence of the debt.
[3] The plaintiffs are not suing for breach of the Settlement Deed because the Deed was conditional on Agri Partners completing a capital raise that would enable it to make payment of $1,625,000. Mr Wilson in his affidavit on behalf of the plaintiffs acknowledges that “[Agri Partners] and/or the Runcimans failed to raise the necessary capital resulting in the condition not being satisfied and as a result did not make payment to Big Hammer and/or [the Wilsons].” The plaintiffs do not dispute that the obligation to pay pursuant to the Settlement Deed was at an end following the failure to raise capital in accordance with the condition. However, the plaintiffs say the Settlement Deed supports their position that the Share Purchase Contract had come to an end, and that the earth moving services were carried out and that the amount claimed was fair.
[4] The defendants oppose summary judgment including on the basis the Settlement Deed was conditional and represented a compromise allowing the second plaintiffs, the Wilsons, to exit the business. As the condition was not fulfilled, the defendants say the Settlement Deed can no longer be relied on. Instead, the defendants say the Share Purchase Contract remains in place as there is no evidence of breach or cancellation. In addition the defendants say there was no agreement to pay for the
earth moving services as now claimed because the work was either not provided or was not expected to be paid for.
[5] The plaintiffs’ position on the pleadings and in written submissions was that there has been a breach of the Share Purchase Contract and the alleged contract for earth moving services and that the Settlement Deed was entered into “in full and final settlement” following breaches of those contracts.
[6] In reply, counsel for the plaintiffs emphasised that the plaintiffs were not now relying on breach and cancellation of those contracts but instead agreed termination.
[7] As the defendants’ position relies on the Share Purchase Contract continuing, and so not having been cancelled for breach or terminated by agreement, I consider whether breach, cancellation and agreed termination of the Share Purchase Contract have been established by the plaintiffs. In terms of the contract for earth moving services, the question is whether there is a clear contract agreeing terms on which payment would be made for services and clear provision of those services.
[8]I therefore consider the following issues:
(a)What were the terms of the Share Purchase Contract?
(b)Have the plaintiffs established the Share Purchase Contract was breached?
(c)If breached, have the plaintiffs established the Share Purchase Contract was cancelled?
(d)Alternatively, have the plaintiffs established the Share Purchase Contract was terminated by agreement?
(e)Is there a reasonably arguable defence to the claim for payment for the earth moving services?
Summary judgment principles
[9]Rule 12.2(1) of the High Court Rules 2016 provides:
The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[10] The principles applying to a plaintiff’s application for summary judgment were set out by the Court of Appeal in Krukziener v Hanover Finance Ltd and are well established.1
[11] 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.2
[12] 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.3
[13] The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. However, it need not accept uncritically evidence that is inherently lacking in credibility — for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable.4
[14] 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.5
[15] Finally I record that to successfully oppose summary judgment a defendant is obliged to lay a proper foundation for their defence in the affidavits filed in support of their opposition.6
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26]–[27].
2 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.
3 MacLean v Stewart (1997) 11 PRNZ 66 (CA).
4 Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at 341.
5 Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
6 Middleditch v New Zealand Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.
What were the terms of the Share Purchase Contract?
[16] It is common ground between the parties that in early October 2022 it was agreed orally that the second plaintiffs, the Wilsons, would purchase 10 per cent of the shares in the first defendant, Agri Partners, for $1,000,000, and that this then increased to 11 per cent for $1,100,000 (Share Purchase Contract).
[17] In their statement of claim, the plaintiffs do not distinguish between the first, second and third defendants, seeking judgment against the defendants jointly and severally. The second and third defendants’ evidence in response is that the Share Purchase Contract was only with the second and third defendants, the Runcimans, personally. The plaintiffs say in reply that it was never clear to them who the contract was with. Mr Wilson points to an email from Chris Runciman7 on 14 June 2023 which refers to Agri Partners completing the share sale, and that shares sold to another party in 2024 were issued by Agri Partners and not sold by the Runcimans. Mr Wilson says that he expects the Runcimans’ stance is to avoid judgment being obtained against Agri Partners so as to protect its ownership of the 15 titles making up its gold mining farm in Hokitika. Mr Wilson deposes further in his affidavit in reply that in any event it does not matter who was selling the shares as the Share Purchase Contract was cancelled.
[18] In terms of summary judgment, whether Agri Partners was a party to the Share Purchase Contract is not clear on the evidence and so summary judgment could not be entered against the first defendant. However that would not prevent summary judgment being entered against the Runcimans (assuming other defences are not available) as, by their own admission, the Runcimans were parties to the Share Purchase Contract.
[19] There is also a lack of clarity as to the further terms of the Share Purchase Contract. The Wilsons have not given evidence on the mechanics and timing of the share transfer. The Runcimans’ evidence is that it was for the Runcimans to determine
7 I refer to the second and third defendants by their first names at some points to avoid confusion. I mean no disrespect in doing so.
the details of implementation of the purchase but without setting out what the details were. The plaintiffs have not contested this evidence in reply.
[20] The fact that the time for completion of the share transfer does not appear to have been agreed is significant. Where there is no express deadline, the implied obligation is that completion will occur within a reasonable time.8 I discuss this further in considering the next issue – whether the plaintiffs have established the Share Purchase Contract has been breached.
Have the plaintiffs established the Share Purchase Contract was breached?
[21] The plaintiffs plead that the Share Purchase Contract was breached because the shares have not been transferred. They have not pleaded or given particulars as to when the alleged breach occurred.
[22] Where no transfer date was agreed, if the plaintiffs are relying on the failure to transfer the shares, the question is whether a reasonable time had elapsed by the time alleged. This is presumably the date of the statement of claim because the statement of claim simply pleads:
7.In breach of contract, [Agri Partners] failed to provide any shares to the Wilsons (“the first breach”).
[23] What amounts to a “reasonable time” must be determined in all the circumstances of the case.9 In “assessing a reasonable period, a Court is entitled to take into account post-contract events, in so far as they may explain the cause or causes of the delay in performance”.10
[24] Here, the defendants submit the delay was reasonable given the following circumstances:
(a)From October 2022 to June 2023, the implementation of the Share Purchase Contract encountered substantial difficulties largely arising as
8 Jeremy Finn, Stephen Todd and Matthew Barber, Burrows, Finn and Todd on the Law of Contract in New Zealand (7th ed, LexisNexis, Wellington 2022) at 715.
9 Mt Pleasant Estates Co Ltd v Withell [1996] 3 NZLR 324 (HC) per Tipping J.
10 Parsot v Grieg Developments Ltd [2009] NZCA 241, (2009) 10 NZCPR 308 at [22].
a result of internal disputes with a further shareholder. The defendants say it is also relevant that the Wilsons’ last payment was made in March 2023 and that their lawyers treated the Share Purchase Contract as on foot in June 2023.
(b)From July 2023 onwards, the defendants point to the fact that the parties were exploring a potential agreed termination, culminating in the conditional Settlement Deed, and that all parties proceeded on the basis the shares would not be transferred during that time.
(c)Prior to filing their notice of opposition to this summary judgment application the defendants’ lawyers provided documents to the Wilsons for completing the share transfer but the Wilsons refused to execute them causing further delay.
[25] The plaintiffs have not established a clear breach of the Share Purchase Contract as there is no evidence that there was a date for share transfer agreed and it is arguable that the delay was reasonable. The contemporaneous correspondence between the parties annexed to the affidavits filed does not demand transfer of the shares or refer to a breach of the Share Purchase Contract or similar as would be expected if there were a breach. Furthermore neither the Settlement Deed nor the accompanying apology refer to a breach. Instead, the background to the Settlement Deed records:
A.The Wilsons have advanced [Agri Partners] (either directly or indirectly) the sum of $1,100,000 (Advances) with the intention of becoming shareholders in the [Agri Partners].
B.[Mr Wilson] and [Big Hammer] have provided earth moving services to the Company (Services).
C.[Agri Partners[ and the Wilsons have agreed that [Agri Partners] shall repay the Advances and pay for the Services on the terms set out in this Deed.
[26] In addition, the written apology attached to the Settlement Deed does not refer expressly to breach or delay in the share transfer itself as opposed to settlement of the dispute between the parties.
[27] From the evidence filed, it is clear that it has been a very difficult time for all parties. The affidavit evidence, particularly of the defendants, goes into detail about those difficulties including in respect of the further shareholder who the plaintiffs were not prepared to work with and required to be exited from the business. The evidence suggests negotiations were required with the further shareholder including consideration of a possible capital raise. I do not set out these difficulties in detail but they provide an arguable explanation for delay in transferring the shares to the Wilsons.
[28] I therefore conclude that it is reasonably arguable that the Share Purchase Contract has not been breached because there was no time for share transfer agreed, neither the Settlement Deed nor other correspondence refers to a breach and there is sufficient evidence of difficulties causing delay in the meantime.
If breached, have the plaintiffs established the Share Purchase Contract was cancelled?
[29] Even if the Share Purchase Contract was breached, the plaintiffs still need to establish that the contract had been cancelled.
[30] Under the Contract and Commercial Law Act 2017 (CCLA), a party may only cancel for breach if, relevantly, the parties have expressly or impliedly agreed that the performance of the term is essential to the cancelling party (s 37(2)(a)), or if the effect is to substantially alter the benefit or burden to the cancelling party (s 37(2)(b)).11
[31] A stipulation as to the time for performance is generally not of the essence and so breach of such an obligation does not immediately entitle the innocent party to cancel the contract.12 The party wishing to cancel must first give notice requiring the other to complete within a further reasonable, but specified, time, making time of the essence.13 This is because “it is undesirable that the rights of the parties should rest
11 See Contract and Commercial Law Act 2017, ss 33–49; and also Mana Property Trustee Ltd v James Developments Ltd [2010] NZSC 90, [2010] 3 NZLR 805 at [36]–[39].
12 Steele v Serepisos [2006] NZSC 67, [2007] 1 NZLR 1 at [40] and [55] per Tipping J and [111]–
[112] per McGrath J; ANZ Bank Ltd v Holt [2013] NZHC 923 at [70]–[71]; and Burrows, Finn and Todd on the Law of Contract in New Zealand, above n 7, at 714.
13 Burrows, Finn and Todd on the Law of Contract in New Zealand, above n 7, at 715.
definitely and conclusively on the expiration of a reasonable time, a time notoriously difficult to predict”.14
[32] The Runcimans have given evidence that the Wilsons said that “they urgently needed funds and no longer wanted to invest in [Agri Partners]” but this is not sufficient for time to have been made of the essence.15
[33] Even if time had been made of the essence, the innocent party must then elect to cancel or affirm the contract. To cancel, that party must notify the other of that intention with “unequivocal words or conduct”.16
[34] The plaintiffs submit that they “cancelled the share purchase agreement at the meeting of 9th July 2023 at the Raft Cafe in Tauranga”. However the evidence filed does not clearly establish that this is the case. Mr Wilson’s own evidence is that at that meeting, the Wilsons told “Chris and Ben that we no longer wanted any shares and essentially wanted our money back”. An email from an agent of the Wilsons the following day similarly stated:
In the subsequent part of the meeting, after a continuous exchange of views and a clarity of conversation, the significant views that Will arrived at (and later confirmed by Marie) were that they:
(a)shall make a complete and full exit in all capacities from Agri-Partners Limited on a date mutually agreed by the parties.
(b)shall have no expectation of wanting or receiving shares or related documentation at any time.
(c)shall require the directors of Agri-Partners Limited repayment in full of the principal sum of NZD$1,100,000.00 (one million one hundred dollars) advanced for the purchase of shares.
(d)shall require payment of services rendered for operations management of the mine and associated expenses totalling a sum of NZD$500,000.00 (five hundred thousand dollars).
(e)shall accept full and final payment of NZD$1,600,000.00 (one million six hundred thousand dollars) in full payment in no more than 14 days
14 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 555 per Mason J.
15 ANZ Bank Ltd v Holt [2013] NZHC 923 at [70]-[84].
16 Homestead Bay Trustees Ltd v Fiordland Experience Group Ltd [2023] NZHC 3248, (2023) 24 NZCPR 706 at [109]. See also Contract and Commercial Law Act 2017, ss 38 and 41; and Burrows, Finn and Todd on the Law of Contract in New Zealand, above n 7, at 727–738.
from the date of this email, 10th July 2023 to the bank account number [Bank account number] in the name of H&M Wilson of [Address].
Will, Marie and I thank you for your efforts to date and wish you well in your endeavours with this business. It was with deep regret that Will and Marie Wilson could no longer see any future as investors with Agri Partners Limited.
In the meantime, we look forward to full payment of the abovementioned monies within the 14 days’ timeframe.
[35] As the defendants submit, both Mr Wilson’s evidence and the email above are arguably expressions of subjective preference rather than cancellation.
[36] Furthermore, the correspondence annexed to the defendants’ affidavits shows extensive negotiations on the terms of a potential exit, culminating in the conditional Settlement Deed entered into in February 2024. Those emails and the Settlement Deed itself are consistent with negotiation towards a potential agreed termination rather than cancellation. Counsel for the plaintiffs appeared to acknowledge there were difficulties in establishing cancellation by emphasising in reply that the plaintiffs were relying on agreed termination.
[37] The plaintiffs have not therefore established the Share Purchase Contract was cancelled.
Alternatively, have the plaintiffs established the Share Purchase Contract was instead terminated by agreement?
[38] I do not consider the plaintiffs have established the Share Purchase Contract was instead terminated by agreement.
[39] The Settlement Deed eventually agreed was conditional on raising capital and does not expressly record an agreed termination otherwise. The background to the Deed simply states that the Wilsons had advanced $1,100,000 to Agri Partners with the intention of becoming shareholders and had provided earth moving services, and that Agri Partners had agreed to repay the $1,100,000 and pay for the earth moving services on the terms set out in the deed. Those terms included the condition as follows:
2.Condition
2.1This deed is conditional upon [Agri Partners] giving notice to the Wilsons that it has completed a capital raising that will enable it to make the payment described in clause 3.l(a) (Condition) on or before 22 March 2024 or such later date as the parties may agree in writing (Condition Date).
2.2If [Agri Partners] does not give notice to the Wilsons that the Condition has been satisfied or waived on or before the Condition Date, then this deed shall come to an end and shall not be binding on any party.
[40] The reference in clause 2.1 above to “the payment described in clause 3.1(a)” is a reference to payment of $1,625,000.
[41] On the terms of the contract including the condition, if capital could not be raised, the Settlement Deed was at an end. This was accepted by the plaintiffs. It is not then simply a case of saying “but you agreed to pay $1,625,000 under the Settlement Deed so that must mean the Share Purchase Contract is terminated and that is the amount required to be paid”. It is clearly arguable that the agreement recorded in the Settlement Deed was only for $1,625,000 to be paid if capital could be raised.
[42] Mr Wilson says in his reply affidavit that support for the plaintiffs’ position that the Share Purchase Contract was cancelled (or, I now add, terminated by agreement) can be found in various emails exchanged between the parties, the settlement process itself and the negotiations leading up to the Settlement Deed. But the events and documents referred to in support of this are the meeting at the Raft Cafe and email proposal afterwards already discussed above, and emails on 31 July, 10 August and 13 and 16 November 2023. In the last of these emails, on 16 November 2023, Chris Runciman accepts the defendants are trying to settle with the Wilsons but not that the Share Purchase Contract has been terminated. Chris says:
Hi Will,
Right now, Phil has not settled and had asked for a lot more - which has made matters a lot more difficult.
We are working to raise funds to repay Graeme and be able to settle your claim and pay Phil.
In the event that this is not possible, Graeme has said he will carry out a mortgagee sale
-
Something which he has said he will do.
I don’t see any value in relitigating the journey of the past year. The difficulties that we have had have been shared and you are not the only one who has had a difficult time.
If we cannot reach something that we can present an investor in relation to your settlement then the capital raise won’t succeed and the company will be wound up.
It doesn’t need to be.
We are terribly sorry that the year has been hard and your capital is now at risk.
Please hold your nerve and be wise - with some care we will all get through this.
I think that it is best if we work through your lawyer so that there is one clear path to get a resolution.
[43] It is clearly arguable that this email is not an acknowledgement that the Share Purchase Contract is at an end but instead the opposite, an acknowledgement that the Wilsons’ capital, that is the amount paid for the shares, is at risk.
[44] Mr Wilson further records that on 15 February 2024, a few days before the Settlement Deed was entered into, Agri Partners successfully raised capital from another couple, the Marshalls, who received a 10 per cent shareholding and one of whom was appointed director. The plaintiffs submit this supports the fact that the Share Purchase Contract had been cancelled, Mr Wilson saying further that what is very concerning is that the capital received from the Marshalls was used to pay off other Agri Partners’ debts and not to repay the Wilsons.
[45] The fact that another party had purchased shares does not clearly establish that the Share Purchase Contract with the Wilsons had been terminated by agreement. The offer to transfer the shares on the day prior to filing of the defendants’ opposition reinforces this.
[46]In terms of this recent offer, Mr Wilson’s evidence is:
… Further the shares Ben and Chris say they were able and willing to sell us had been diluted in value and the percentage offered was less than originally
agreed. As a consequence our response to the defendants' lawyers' letter of 16th July was naturally that we intended to proceed with the current application.
[47] Again this does not clearly establish an earlier agreement to terminate but instead a possible dispute as to whether the Share Purchase Contract was an agreement to purchase 11 per cent of the shares at the time the Wilsons’ capital was paid or 11 percent when the shares were transferred.
[48] To properly interpret the Settlement Deed to determine whether it represents termination despite the condition in clause 2, as the plaintiffs submit, the Court is required to adopt an objective process with the aim being to:17
[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.
[49] This approach reflects the fact that “contractual language, like all language, must be interpreted within its overall context, broadly viewed.”18
[50] In circumstances where the Share Purchase Contract is oral and the parties dispute what was said at meetings and the meaning of correspondence leading up to the Settlement Deed, a full hearing and potentially cross-examination will be required in order to properly interpret the Settlement Deed. The written apology attached to the Settlement Deed will be relevant to the Deed’s interpretation but it is in broad terms and so does not assist in establishing agreed termination for the purposes of summary judgment as the plaintiffs contend.
[51] The plaintiffs have not therefore established that the Share Purchase Contract has clearly been terminated by agreement.
17 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL) at 912 cited with approval in Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60].
18 Firm PI 1 Ltd v Zurich Australian Insurance Ltd, above n 9, at [61].
Is there a reasonably arguable defence to the claim for payment for the earth moving services?
[52] Summary judgment could still be available for the amount owing for the earth moving services if the evidence establishes a clear contract agreeing terms on which payment would be made for services, provision of those services and failure to pay.
[53] The plaintiffs’ evidence in relation to any contract for earth moving services is relatively minimal with Mr Wilson not addressing the terms of any contract for these services in his original affidavit. In reply, Mr Wilson does not accept the defendants’ evidence that the work had been done in connection with the Share Purchase Contract without expectation of further payment but simply says that “the earth moving services provided by us were always going to be paid for”. There are no further details as to the terms of that payment, Mr Wilson instead referring to a number of emails and invoices that he says showed that they were in fact paid for from time to time.
[54] Mr Wilson goes on in his reply affidavit to say that, in any event, during the settlement negotiations in late 2023, Chris Runciman accepted in an email on 13 November 2023 that the amount agreed for settlement was fair, and that this sum included the amount agreed for earth moving services.
[55] Mr Wilson further deposes that during the settlement negotiations the defendants accepted that the Wilsons had provided the earth moving services and agreed to pay for those services, and it was the defendants’ lawyers who drafted the first version of the Settlement Deed and the final revised deed, acknowledging that the Wilsons had provided the services. The plaintiffs say that the defendants’ position now contradicts the Settlement Deed.
[56] The defendants’ evidence in response is that there was no agreement to pay for earth moving services, that invoices of approximately $96,000 were issued and were paid as a gesture of goodwill, and on an invoice basis only, and that no invoice has been issued for the $525,000 now claimed.
[57] The defendants further submit that the $525,000 now claimed is for a period of five months when earlier emails had recorded that both sides had contemplated that
Mr Wilson would be employed at an annual salary of $250,000, which is the basis on which Mr Wilson said he had calculated the issued invoices in an email on 23 June 2023. The defendants’ evidence is that the amount included for earth moving services in the Settlement Deed reflected a compromise and not the value of any work.
[58] I accept the defendants’ submissions that it is reasonably arguable that there is a defence to the claim for payment for the earth moving services. In an email on 31 July 2023, Chris Runciman records “Will has been asking us to pay invoices that he has issued [Agri Partners]” and “I have let him know that these invoices have not been agreed to and I cannot progress this without reaching something more definitive and reasonable in relation to all matters outstanding between [Agri Partners] and themselves”. The $525,000 now claimed is in addition to the amounts claimed in invoices referred to in that email. The plaintiffs appear to rely only on the fact that the amount of $525,000 was included in the Settlement Deed and the further email of Chris Runciman dated 13 November 2023 in which Chris recorded “we believe that your offer is fair.” The offer referred to was the offer made on behalf of the plaintiffs on 10 July 2023 following the meeting at the Raft Café on 9 July 2023 proposing repayment of the $1,100,000 for shares plus payment for services of $500,000.
[59] The conditional Settlement Deed then finally agreed on 26 February 2024 included a total sum of $1,625,000, allowing $525,000 for the “earth moving services”. However in signing the Settlement Deed, the plaintiffs agreed that this sum was only payable if capital could be raised.
[60] In an email dated 18 November 2023 during the negotiations leading up to the Settlement Deed, Mr Wilson records that an investor was needed to settle and to pay the Wilsons back for their investment “including damages, trauma, loss of income, legal and accounting fees, mental stress and loss of future profits from the mine,” apparently acknowledging that any settlement figure would address a number of factors and not just repayment of any investment and potential payment for services.
[61] As set out above, proper interpretation of the Settlement Deed is required before concluding the Deed itself, or combined with other correspondence, represents
an agreed termination or an acknowledgement of debt to which the defendants have no defence.
[62] In these circumstances summary judgment cannot be entered for the amount claimed in respect of earth moving services either.
Result
[63]The plaintiffs’ application for summary judgment is declined.
Costs
[64] The usual position in respect of a plaintiff’s unsuccessful summary judgment application is for costs to be reserved until determination of the substantive proceedings for the reasons set out in NZI v Philpott.19
[65] I ask the parties to confer and, only if matters cannot be agreed and the defendants consider costs ought to be fixed and payable now, for memoranda to be filed on behalf of the defendants by 13 June 2025 and by the plaintiffs by 27 June 2025.
Directions
[66] No statement of defence has yet been filed. In accordance with r 12.12(1) of the High Court Rules 2016, I therefore direct:
(a)the defendants are to file and serve their statements of defence by
4 July 2025; and
(b)the parties are to file a joint memorandum (with any differences set out) addressing the matters referred to in r 7.3 by 18 July 2025.
Associate Judge Sussock
19 NZI Bank v Philpott [1990] 2 NZLR 403 (CA).
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