Brytec Stock Feed Limited v Image Holdings Limited
[2022] NZHC 2675
•17 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-814
[2022] NZHC 2675
IN THE MATTER of s 290 Companies Act 1993 AND
UNDER
Part 19 High Court Rules 2016
BETWEEN
BRYTEC STOCK FEED LIMITED
Applicant
AND
IMAGE HOLDINGS LIMITED
Respondent
Hearing: 27 September 2022 Appearances:
W A McCartney for Plaintiff A Barker KC for Defendant
Judgment:
17 October 2022
JUDGMENT OF ASSOCIATE JUDGE LESTER
(in respect of application to set aside statutory demand)
BRYTEC STOCK FEED LIMITED v IMAGE HOLDINGS LIMITED [2022] NZHC 2675 [17 October 2022]
[1] Image Holdings Limited (IHL) processed stock feed for Brytec Stock Feed Limited (Brytec) from March 2016 to December 2020.
[2]IHL says the total amount it invoiced Brytec over that period was
$2,232,832.58. It was common for there to be multiple invoices per month – the total number of invoices issued being many hundreds, if not close to a thousand over that period. When their trading relationship ended, IHL says it was owed $843,716.58. It issued a statutory demand which Brytec applied to set aside.
[3] IHL processes, blends and packages product supplied by its customers. It is operated by Messrs Deane and Andrew Murray. Brytec sells a CMR product – that is a Calf Milk Replacement product to farmers processed by IHL.
Brytec’s defences
[4] Brytec says it does not owe the amount claimed or that it has a counterclaim or set-off in respect of that amount. Four challenges to the demand are raised by Mr Montgomery on behalf of his company (Brytec):
(1)IHL has overcharged Brytec for processing to the extent it extinguishes the amount demanded;
(2)Brytec has in fact overpaid IHL due to IHL not recording payments against the invoices that make up the amount IHL has demanded;
(3)A complaint that as a result of poor processing by IHL, or at least the unauthorised addition of an ingredient, that Brytec’s product became rotten which led to claims against Brytec by its customers;
(4)A claim in detinue based on IHL having in its possession raw materials or processed product belonging to Brytec, the value of that claim being
$257,853.00.
What Brytec must demonstrate to have the statutory demand set aside
[5]The following principles apply:1
[16] The general principles under s 290(4) are well settled:
(a)The onus is on the applicant seeking to set aside the statutory demand to show that there is arguably a genuine and substantial dispute as to the existence of the debt. The Court’s task is not to resolve the dispute but to determine whether there is a substantial dispute that the debt is due.
(b)The mere assertion that a dispute exists is not sufficient. Material short of proof is required to support the claim that the debt is disputed.
(c)If such material is available, the dispute should normally be resolved first in ordinary civil proceedings before any statutory demand is issued.
(d)If a counterclaim, cross-demand or set-off is suggested an applicant must establish that this is reasonably arguable in all the circumstances.
(d) It is not usually possible to resolve disputed questions of fact on affidavit evidence alone, particularly when issues of credibility arise unless such evidence is contrary to the available documents or earlier statements made by the parties.
[6] Mr McCartney, counsel for Brytec, submitted it is not for the Court at this stage to make actual findings that would involve dismissing Mr Montgomery’s evidence. Mr McCartney submitted that if Mr Montgomery’s narrative was not impossible, then whether it was true was a matter for trial and not for a statutory demand hearing.2
[7] In reply, Mr Barker KC, counsel for IHL, referred to the following paragraph from the Court of Appeal decision in United Homes (1988) Ltd v Workman:3
The Court is not required in cases of this character meekly to accept without question whatever unvarnished statements may happen to be made on affidavit. The Court is entitled to act in a more robust and common-sense manner.
1 Confident Trustee Ltd v Garden and Trees Ltd [2017] NZCA 578.
2 This submission is based on an analysis on Eng Mee Yong v Leutchumanan s/o velayutham; and Bilbie Dymock Corporation Ltd v Patel & Bajaj (1987) 1 PRNZ84. Mr McCartney said in each case the evidence was rejected because it was impossible and did not involve shades of meaning or resolving conflicts.
3 United Homes (1988) Ltd v Workman [2001] 3 NZLR 447 at [34].
[8] In that case an assertion of a “clear express agreement” without substantiating background was considered bare to the point of being unconvincing. The Court said:
If an agreement is clear and express, there should be no difficulty in identifying the date and place of its making, the persons involved in its making, and the manner of its statement and/or recording. No such details are given.
[9] I do not accept Mr McCartney’s analysis of the authorities. Mr McCartney submitted if what Mr Montgomery said is true, then Brytec has a defence and it cannot be determined in this hearing that what Mr Montgomery says is not possibly true, therefore Brytec has an arguable case. Mr McCartney went further, submitting the fact expected documents were not produced is not conclusive, particularly given the short timeframes that apply to applications to set aside statement demands.
[10] The onus is on Brytec to show there is arguably a genuine and substantial dispute as to the existence of the debt. A mere assertion is not sufficient. Mr McCartney’s submissions cut across these fundamental principles. Mr McCartney’s position amounts to saying that if an applicant’s evidence may possibly be true, that is enough to set aside a statutory demand. While material short of proof is required, nonetheless some material must be produced. Each case of course turns on its own facts. The circumstances may be such that the existence of the debt turns on a straight credibility dispute and one would not expect there to be contemporary documents or communications. In such a case, a statutory demand is unlikely to be appropriate. Equally, circumstances may be such that it is reasonable, even in the short timeframes allowed for an application to set aside a statutory demand, that supporting material can be produced.
[11]For reasons that I will explain, I consider this case to be in the second category.
The first challenge to the demand: was a fixed price agreed?
[12] The only basis advanced by Mr Montgomery for there being a fixed price for processing is an email sent by Mr Deane Murray of IHL to Mr Montgomery dated March 15, 2016. The email referred to a meeting where the urgent blending of 20-25 metric tonnes of milk powder for Brytec was discussed. In the email Mr Deane Murray said: “I am pleased to confirm the following” and then there is
a description of the product, the quantity, the packaging and a price per kilogram of
$0.265/kg. The email set out what that pricing was based upon and then said:
As indicated, we will see how we get on with this product and from this will offer you an [sic] price to manufacture further product.
[13] From this email it is clear that the price of $0.265/kg was a one-off price, not a fixed price for future work come what may. The email does not support this challenge to the demand.
IHL’s terms of trade
[14] Brytec completed IHL’s Account Application Form which contains Terms of Trade on the reverse of the form. That Form is dated 17 March 2016. Clause 4 of the Terms of Trade provides:4
4.PRICE
4.1Where no price is stated in writing or agreed to orally the Products shall be deemed to be sold at the current amount as such Products are sold by IHL at the time of the contract.
4.2The price may be increased by the amount of any reasonable increase in the cost of supply of the Products that is beyond the control of IHL between the date of the contract and delivery of the Products.
[15] There being no agreement that the $0.265/kg was to apply to all further processing, the above terms mean Brytec’s claim that costs higher than $0.265/kg cents/kg (or up to $0.38/kg for certain formulations) are irrecoverable cannot succeed.
Were any of the hundreds of invoices challenged?
[16] Each of the hundreds of invoices sent by IHL to Brytec over their years of trading showed the rate per kilo being charged. Almost all, if not all, were at a rate higher than $0.265/kg. The trading relationship lasted about five years. There is no evidence Mr Montgomery complained that IHL had charged more than the amount “quoted” in the email of 15 March 2016.
4 The copy of the Terms of Trade produced from 2016 is illegible. A copy of the latest terms was provided at the hearing at my request which, save for a correction to the number of the clauses, is the same as the 2016 Terms of Trade.
[17] Mr Montgomery, in his reply affidavit, said: “I usually don’t check invoices – I just look at the bottom line”.
[18] But the evidence shows Mr Montgomery managed to review at least the following invoices. In an email sent to Mr Deane Murray on 28 March 2020, Mr Montgomery asked why the price had increased from $0.69/kg to $0.74/kg and asked if it was possible to lower the fat content and reduce the price. I will return to the significance of the fat content in relation to the alleged counterclaim.
[19] That email sent at 12:12pm was in response to an email from Mr Deane Murray timed at 11:52am the same day on 28 March 2020, which quoted a price of $0.74 /kg. Mr Deane Murray replied promptly, explaining that the cost increase arose from the testing and screening of the raw materials provided by Brytec. Mr Deane Murray said this was necessary to identify what IHL were dealing with, that is, the quality of the raw material supplied by Brytec, and notes: “…we discussed this a few weeks back.” Mr Deane Murray notes that the only way he can lower the fat and the cost is by removing a bag of lard which would bring the cost back to $0.69/kg and the fat content back to 19 per cent. Mr Montgomery replied that 19 per cent was fine.
[20] On 31 January 2020, Mr Deane Murray emailed Mr Montgomery quoting different rates for Brytec’s product depending on how it was bagged and whether it was supplied on pallets or not. The different prices were $0.63/kg, $0.67/kg and
$0.69/kg. Mr Montgomery replied, opting for one of the bulk bag options.
[21] On 25 October 2019, IHL emailed Mr Montgomery under the subject heading “New Blend” with the email advising: “Just letting you know the price for your new blend will be $0.79/kg ex store”.
[22] There is a similar email exchange in June 2020 with Mr Montgomery raising questions about different levels of charging.
[23] In none of those emails does Mr Montgomery make what, on his case, would be the obvious point that he had the benefit of a fixed price quote.
[24] Mr Montgomery’s claim that he did not usually check invoices is an unusual assertion. IHL was the primary, indeed the only processer of product for Brytec for most of their trading relationship. As will be discussed below, Brytec’s business fell into substantial arrears with IHL. In those circumstances, common-sense would dictate the need to look at pricing. Mr Montgomery says its products were popular. However, Brytec could not keep its account with its processor current. Either Brytec was not charging enough for its product or it was costing too much to make (or a combination of the two). Given the size of the debt that Brytec had accumulated with IHL by October 2019 it is not credible that Brytec did not review its costs.
[25] As the review of the invoices above shows, Brytec was aware that IHL was charging more than the fixed price. This is doubly significant. First, it casts real doubt on Mr Montgomery’s claim that he did not check the invoices and just looked at the bottom line. As an aside, this claim does not make sense as in some cases the price charged was as much as $1.14/kg. That is about four times the 2016 price. Even by just looking at the bottom line, it would show if he was just looking at the bottom line charge significantly over and above what Mr Montgomery would have expected the price to be. The second point is that the emails reviewed above do not contain a claim that IHL was in breach of the original quote and show Mr Montgomery was expecting prices in the $0.60/kg range.
[26] The issue is not as submitted by Mr McCartney that IHL has not established that Brytec agreed to price changes – it was for Brytec to show an arguable case that it had the benefit of a fixed price agreement. It has not done so. I conclude Brytec has not established a reasonably arguable basis for its claim that it had the benefit of a fixed price processing and was overcharged. This ground is dismissed.
The second challenge: has Brytec in fact over paid IHL?
[27] This ground was added in an amended application dated 9 September 2022. This amended application was accompanied by Mr Montgomery’s affidavit in reply to IHL’s affidavits and also provided Mr Montgomery’s evidence in support of this new ground.
[28]The new ground added to the application is:
[IHL’s] claimed debt fails to take into account payments by the applicant of no less than $1,764,116.00.
[29] Mr McCartney submits that nowhere is there a single coherent statement of account. That is true and such a statement would have been helpful, but the material provided allows Brytec’s claim of overpayment to be assessed.
[30] Mr Montgomery says that since July 2019 Brytec has paid IHL $1,764,116. Mr Montgomery points out that while the statement IHL attached to its statutory demand shows invoices totalling $843,716.58 (the amount in the statutory demand), “… it shows no payments made in that whole period”.
[31] For the period covered by IHL’s statement (starting 7 October 2019) making up the statutory demand amount, Mr Montgomery says Brytec paid IHL of
$1,264,116.00. Mr Montgomery says, as this exceeds the amount of IHL’s claim, Brytec has overpaid $420,399.50.
[32]Mr Montgomery then makes this cryptic statement:
Contrary to what we had agreed, it seems [IHL] was not crediting Brytec’s payments to current work. If they were, there would be nothing owing on the statement they rely on. But even if they weren’t, the $1.764 million paid since July 2019 was a lot more than what was needed to pay the whole of the old debt.
[33] Mr Montgomery gives no detail whatsoever of this alleged agreement but as will be seen, this comment is significant. Mr Montgomery concludes:
I accept that my accounting system is not good. … But [IHL’s] accounting seems to be worse than mine.
[34] This evidence given in support of the newly added ground is disingenuous to say the least. Given this was new evidence in support of an amended application, IHL was entitled to reply and did so. Mr Andrew Murray’s reply cuts the ground out from Mr Montgomery’s claims. Mr Murray explains that as at 7 October 2019, the date the statement attached to the statutory demand begins, Brytec owed IHL a significant sum.
[35] At the beginning of October 2019, Brytec owed IHL $1,283,829.26 and Mr Andrew Murray attaches a statement showing the outstanding balance which he
says was provided to Brytec at the time. This outstanding debt was the subject of correspondence between the parties’ lawyers at the time. In that correspondence, Brytec does not dispute the existence of the debt, IHL’s lawyers refer to the outstanding debt and record: “Brytec has agreed to provide security to [IHL] for the debt”.
[36]Mr Montgomery, in an email to Mr Andrew Murray of 31 July 2020 said:
Further to your letter regarding my payments. I spent my evening last night looking at what I have been doing to pay my account down … in October last year my account was $1,297 522,00… I absolutely have been doing my best to reduce this ever since I discovered my account blowout exacerbated by the unsolicited addition of lard and increased production charges which I had not been aware of until October. Since that [time] I have been making positive headway that would make many businesses falter. At the end of july my account showed I had reduced my overdue debt through our off-season by
$394 394.00 I look forward to being paid up to date perhaps by the end of this season but can only do my best. We have had issues with foreign matter for several months. Product faults have cost many thousands to get sorted.
… I expect my account would be current or close to it by late November this year.
[37] IHL acknowledged the email and the work put in to reducing the debt. The claimed unsolicited additions of lard is addressed below. This email also shows Mr Montgomery being on top of his accounts knowing to the dollar how much Brytec has reduced its historical debt.
[38] Mr Andrew Murray reconciles the differences between Brytec’s debt as at 1 October 2019 and the opening amount in the statement beginning 7 October 2019 attached to the statutory demand. He then updates the total amount paid by Brytec, including an omitted payment made after 31 March 2021, to record all invoices issued and all payments received, arriving at the amount in the statutory demand.
[39] Mr Andrew Murray says payments received since October 2019 were applied to the oldest invoices first, that is, the historic balance. In the absence of an agreement or a direction as to how a payment is to be allocated, a creditor is free to apply payments to such debts as they think fit.
[40] That Mr Montgomery should on oath claim BHL overpaid the IHL invoices issued since October 2019, when he was well aware payments were being applied to
the historical debt, is hard to see as an honest error. At best, Mr Montgomery’s glancing reference (noted at [32] above) to payments being applied to latest invoices shows he was aware of the historical debt but chose not to address it in his reply affidavit which served as his evidence in support of this additional ground. Mr Montgomery’s failure to provide any detail whatsoever of his asserted agreement with IHL that payments would be applied to the new invoices means this barest of assertions can be completely discounted, that is, even before one asks what Mr Montgomery thought was going to happen to the nearly $1,300,000 debt as at October 2019. No security was given for the debt. Mr Montgomery confirmed in the email quoted at paragraph [36] he knew payments after October 2019 were being applied against that old debt. This ground of challenge to the statutory demand is dismissed.
Third challenge: first counterclaim – faulty processing – adding of unauthorised ingredient
[41]Brytec claims IHL added lard to Brytec’s product contrary to its instructions.
[42] Mr Montgomery refers to the 2019 season where he says IHL told him that another manufacturer of stock feed was adding lard to its product in order to increase the fat content. It is not clear when in 2019 Mr Montgomery is saying that discussion occurred. Earlier in his affidavit Mr Montgomery says Brytec’s business is seasonal with the main selling season being July to November with a smaller calving season March to April. Mr Montgomery says that IHL recommended Brytec add lard to its CMR. Mr Montgomery says: “I was strongly opposed to adding lard. I said I was not interested”. He claims that IHL insisted that it was a good idea and Mr Montgomery says:
In the end I agreed to a limited trial for only one tonne of product. I said that [IHL] could add one 50-pound bag of lard to one tonne to see how it went. At that stage Brytec was selling about 1000 tonne per year. I never agreed to more than that one tonne of product, and I never agreed to more lard than one 50-pound bag.
[43]Mr Montgomery then says:
That season there were endless problems with Brytec’s product. Farmers were complaining that the product was going rotten in their feeders. Farmers were complaining that the product was blocking feeding teats. We had to replace 150 tonnes of product from places as far away as Southland and Whanganui and Gisborne. Often we had to replace product two or three times for the same customer. At that time the product was selling for $4,000 per tonne, so just to replace it all once was a cost of $600,000, ignoring shipping costs. I haven’t done a precise calculation, but I estimate the total cost to Brytec of replacing all that product was around $1 million. On top of that, customers were lost forever.
[44] Mr Montgomery says he didn’t understand what the problem with Brytec’s product was until December 2019 when he says an employer of IHL said they thought the problem might be the amount of lard in the product. Mr Montgomery claims he was shocked and that he did not know IHL was adding lard to the product, save for the one tonne trial he had agreed to. Mr Montgomery claims the IHL employee told him IHL was adding 12, 50-pound bags per tonne to Brytec’s product.
[45] Mr Montgomery says he was angry and he went to see Mr Deane Murray. He said he told Mr Deane Murray the addition of the lard had cost Brytec a lot of money and Brytec had lost customers. He says this led to a threat of violence from Mr Deane Murray.
[46] Once again, Mr Montgomery’s claims in his initial affidavit cannot be reconciled with the email record.
[47] The CMR produced by Brytec had to have a minimum fat content. Lard is a way of meeting that requirement.
[48] The issue here is not the cost of the lard. IHL has invoiced for that since the issue of the statutory demand. The issues are whether the addition of lard caused the product to go rotten and, even if so, whether Mr Montgomery consented to that addition.
[49] The following emails have been produced by IHL on this topic. The first is dated 25 October 2019 and is an email from IHL to Mr Montgomery. This is the email
already noted at [21] above. The email notes that the blend includes a number of ingredients including: “50kg of Lard as per your discussion with Deane”.
[50] The next email is 19 December 2019 from Mr Montgomery to Mr Dean Murray. This email asks IHL to “plan and price 60 tonne of 1600 kg batches”. It then refers to Mr Montgomery’s calculations of fat and protein levels and he says: “Ideally I would like to include [3 bags casein], [3 bags Lard]”. Mr McCartney referred to the last line of the email where Mr Montgomery says the mix of ingredients would use up “… some lard for you as well” (emphasis added). Mr McCartney characterised this as Brytec helping out IHL to use up some of the lard it had on hand. Why Mr Montgomery would make this offer when he claims the unauthorised addition of lard had cost him $1,000,000, was something which, in December 2019, he was angry about and which, when raised, resulted in threats of violence by Mr Deane Murray, is not explained by Mr Montgomery.
[51] The next email is 28 March 2020. This has already been referred to at [18] where Mr Deane Murray refers to lowering the fat percentage and costs by removing a bag of lard.
[52] The next email is 11 June 2020 from Mr Montgomery to Mr Deane Murray. This is part of an email exchange addressing a problem encountered by Mr Montgomery’s clients. The exchange starts with an email dated 11 June 2020 in which Mr Montgomery says that Brytec needs to be sure it can guarantee its finished product going forward:
I have been blaming excess caseine etc but think that has been erroneous.It is seriously damaging our Brand. I am looking to your process to help with this problem please… We are constantly swapping batches at enormous expense to my company.For whatever reason we have continued to have batches of finished powder that has coarse particles which block teats and we need to settle the issue permanently… (emphasis added).
The email concludes:
I want a cost and process please for completed product per kilo.Include one bag of lard, two bags of casein. looking forward to many tonnes of trouble free powder.
There is no mention of product going rotten in this email exchange.
[53] That email says Brytec wants every batch of their product sieve tested before it is bagged and a guarantee that no further batches will leave production until it is suitable for purpose. Mr Murray replied:
I appreciate the issues you are currently facing with your CMR and agree in the fact that a change in process needs to be implemented in order to try and eliminate this problem.
I am happy to looking into and cost up a process that will give you the best possible means to eliminate this problem your customers are experiencing with the finished product.
As discussed earlier this week with you in person I believe we had a process in place previously, which greatly reduced the presence of this issue in the field but we were asked to cease this process due to cost considerations.
Are you wanting [IHL] to put back in place composition testing of both your raw materials as well as finished product, or will you continue to carry out this yourself,
and only want [IHL] to implement a process to help identify try and eliminate the issue relating to problematic particles present in the finished product.
[54] Mr Montgomery replied apologising and that he did not realise he had asked IHL to eliminate a process. The email also notes:
I was of the understanding you reduced from $1.06 to 0.69 cents when you reduce supply of lard to two bags per 1.6 tonne … I believe you charged extra for milling and testing and reduced lard to one bag to cover that initial charge
… then I understood we added solubility testing to bring it to 71 cents
… I would like to continue raw product testing ourselves for fat and protein etc …
[55] The product sold by Brytec is made up of milk powder and the like that is not fit for human consumption. It is not sold by IHL to Brytec – only processed. There can be inconsistencies in the quality of the raw materials. Hence the reference to the testing of raw materials and the need for it to be sieved.
[56] What these emails show, in particular the last exchange, is that Mr Montgomery’s initial claim that he only agreed to a one-off trial of lard being added with one 50-pound bag was not true.
[57] Further, the claims being faced by Brytec which it raised with IHL were not of product going rotten but of particles in the product that blocked feeding teats. There
is no mention in any communication from Brytec to IHL of product going rotten. Product going rotten is something Mr Montgomery says contributed to a $1 million loss and the loss of customers. It was something he was angry about. While he takes up the issue of how coarse particles were blocking feeding teats, he does not take up with IHL the claim he now raises concerning feed rotting. The high point of this claim is the email of 31 July 2020 set out at [36] that the addition of the lard was unsolicited. Had such caused $1 million in losses, it is unthinkable Brytec would not have complained. Nor are any letters or emails of complaint from farmers produced.
[58] I find Brytec has not established it has a reasonably arguable counterclaim in respect of its first counterclaim because:
(1)Mr Montgomery’s absolute denials that he agreed to the use of the addition of lard were wrong.
(2)Despite Ms Montgomery’s claimed anger over the issue which he said had cost him $1 million, there is no communication at all by him voicing that concern to IHL.
(3)Nothing is produced from farmers claimed to have been affected by rotten feed.
(4)There is no evidence or explanation as to how the inclusion of lard could cause feed to go rotten nor block feeding teats, let alone that it was in fact the cause of the claimed issues here.
[59] Brytec has not demonstrated that its claimed counterclaim based on lard causing its product to go rotten is reasonably arguable. None of the material one would expect such a claim to generate, has been produced. There is no contemporary complaint. The claim that only a one-off trial of lard was agreed was wrong. This claim does not rise above bare assertion.
Fourth challenge: second counterclaim: retention of stock
[60] IHL retains stock belonging to Brytec. IHL accepts it has not released that stock saying it will do so upon payment of its debt. The stock is made up of a combination of raw materials and materials processed to Brytec’s requirements. Brytec has put a value on this stock of $257,853. Brytec says that IHL’s refusal to release the stock means that Brytec has a claim in detinue against IHL.
[61] Mr Barker accepted that, unless IHL’s Terms of Trade permitted it to retain the stock, Brytec would have an arguable cross-claim in respect of this issue.
[62]Clause 12 of the Terms of Trade under the heading “General Lien” provides:
12.GENERAL LIEN
12.1The Customer agrees that IHL may exercise a general lien against any Products or property belonging to the Customer that is in the possession of IHL for all sums outstanding under this contract and any other contract to which the Customer and IHL are parties.
12.2If the lien is not satisfied within seven (7) days of the due date IHL may, having given notice of the lien at its option either:
12.2.1Remove such Products and store them in such a place and in such a manner as IHL shall think fit and proper and at the risk and expense of the Customer; or
12.2.2Sell such Products or part thereof upon such terms as it shall think fit and apply the proceedings in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
[63] Mr Barker submitted this clause on its plain wording gave IHL the right to retain Brytec’s property until paid for. Mr McCartney did not submit otherwise. Brytec says this clause prevents IHL’s retention of Brytec’s property amounting to detinue. I agree. I dismiss this ground.
Conclusion
[64] None of the grounds relied on by Brytec to set aside IHL’s statutory demand have succeeded. Brytec’s application is therefore dismissed.
Costs
[65] Counsel agreed that costs should follow the event on a 2B basis and I so order, together with disbursements as fixed by the Registrar.
[66] I order pursuant to s 291(1)(a) of the Companies Act 1993 that Brytec is to pay the amount claimed in the statutory demand to IHL within 20 working days of the date of this Judgment. If that payment is not made, IHL may apply to put Brytec into liquidation.
Associate Judge Lester
Solicitors:
Bell & Graham, Matamata (for Plaintiff) Davies Law, Auckland (for Defendant)
Copy to counsel:
W A McCartney, Barrister, (for Plaintiff)
A Barker KC, Barrister, Auckland (for Defendant)
0
1
0