Bryant Logging Limited v Sounds Logging Limited HC Nelson CIV-2007-442-174

[2007] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2007-442-174

BETWEEN  BRYANT LOGGING LIMITED Applicant

ANDSOUNDS LOGGING LIMITED First Respondent

ANDHEARTLAND LOGGING LIMITED Second Respondent

Hearing:         17 May 2007

Appearances: M. Radich for Applicant

No appearance for Respondents/Defendants
Mr Dunne for Intended Third Party Intervener Spiers Group Limited

Judgment:      17 May 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

[1]      The application before the Court is an application for summary judgment by Bryant Logging Limited against Sounds Logging Limited and Heartland Logging Limited.  There is no appearance today for the respondents.  Nor has any opposition to the application been filed by the first respondent Sounds Logging Limited or the second respondent Heartland Logging Limited.

[2]      An ex parte application by Spiers Group Limited as a third party to intervene in this proceeding has been lodged with certain additional documentation.

[3]      The position concerning Spiers Group Limited appears to be that it has a personal property security interest in the Thunderbird Hauler in question.

BRYANT LOGGING LIMITED V SOUNDS LOGGING LIMITED AND ANOR HC NEL CIV-2007-442-174

17 May 2007

[4]      Through Mr Dunne, counsel for Spiers Group, it is noted that Spiers Group is comfortable with the orders sought in the plaintiff’s application noted as paragraphs

3, 4, 5 and 6.  It opposes, however, orders 1 and 2.

[5]      As I understand it, this is on the basis that Spiers Group contends that orders

1 and 2 may have some impact upon its claim to a personal property security interest in the machine.

[6]      Having  heard  submissions  this  morning  from  counsel  for  Spiers  Group Limited and counsel for the plaintiff with respect to that matter, I am satisfied that those orders 1 and 2 can be made with appropriate amendments.

[7]      As I have noted, there is also no opposition from the first respondent or the second respondent to any of the orders sought by the plaintiff.

[8]      That said, and as I am also satisfied that the respondents have no defence to the claim made in this proceeding by the plaintiff, summary judgment is to be granted in favour of the plaintiff.

[9]      The following orders are now made by way of summary judgment:

a)       That Heartland Logging Limited is required to surrender to Bryant Logging Limited possession of the 1986 Thunderbird Hauler, the subject of the sale and purchase agreement between Bryant Logging Limited and Sounds Logging Limited dated 1 March 2004 (“the agreement”).

b)That Bryant Logging Limited is entitled to retain possession of the Thunderbird Hauler subject  to  the PPSA  interest  of  Spiers  Group Limited until the earlier of:

i)Sounds Logging Limited discharging its obligations to Bryant Logging Limited under the agreement for sale and purchase between them dated 1 March 2004; or

ii)Spiers Group Limited exercising their rights under the security they hold under the Personal Property Securities Act 1999 in respect of the Thunderbird Hauler.

c)       For judgment in the sum of $64,143.52, being the amount of the purchase price outstanding under the agreement (outstanding amount).

d)For interest on the outstanding amount from 1 March 2004 to the date of judgment under the Judicature Act 1908.

e)        That the agreement has been effectively cancelled by Bryant Logging

Limited pursuant to s7 Contractual Remedies Act 1979.

f)        Costs are awarded to Bryant Logging Limited with respect to the summary judgment application upon a category 2B basis, together with disbursements as approved by the Registrar.

‘Associate Judge D.I. Gendall’