Bunnings Limited v Foresight Construction Limited HC Wellington CIV-2010-485-1621

[2011] NZHC 357

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1621

BETWEEN  BUNNINGS LIMITED Plaintiff

ANDFORESIGHT CONSTRUCTION LIMITED

Defendant

Hearing:         15 February 2011 (Heard at Wellington)

Counsel:         K Morris-Lisette - Counsel for Plaintiff Company

No appearance for the Defendant Company

Judgment:      15 February 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Craig, Griffin & Lord, Solicitors, PO Box 9049, Auckland

BUNNINGS LIMITED V FORESIGHT CONSTRUCTION LIMITED HC WN CIV-2010-485-1621 15

February 2011

[1]      Before the Court are two applications:

(a)      An application by the plaintiff seeking an order to place the defendant company into liquidation; and

(b)An  application  by  the  plaintiff  seeking  summary  judgment  (as counter-claim defendant) against the defendant with respect to a counter-claim made by the defendant against the plaintiff dated 15

September 2010.

(c)      Before  me  today  Ms  Morris-Lisette  appeared  as  counsel  for  the plaintiff. There was no appearance by or for the defendant.

[2]      Ms Morris-Lisette at the outset indicated to me that instructions she has received  from  her  principals  in  this  matter  Craig  Griffin  &  Lord,  Solicitors, Auckland are that the defendant company, Foresight Construction Limited, passed a shareholders’ resolution to place itself into voluntary liquidation on 21 January 2011.

[3]      Ms  Morris-Lisette  went  on,  however,  to  indicate  that  an  application  by another creditor of the defendant company is to be the subject of a call before this Court on 25 February 2011.  She also noted that there is some issue as to whether the resolution placing the defendant company into voluntary liquidation on 21 January

2011 was properly passed and therefore whether the defendant company is properly in liquidation at present.

[4]      Assuming that liquidation matters have properly been attended to and the defendant is now in liquidation, then s 248(1)(c) Companies Act 1993 provides:

(a)        With effect from the commencement of the liquidation of a company -

........

(c)        Unless the liquidator agrees or the Court orders otherwise, a person must not –

(i)          Commence or continue legal proceedings against the company or in relation to its property; or

(ii)         Exercise or enforce, or continue to exercise or enforce, a right or remedy over or against property of the company ...

[5]      In the present case the Court is unaware at this point of who may have been appointed as liquidator of the defendant under the voluntary liquidation.  There is no appearance on behalf of the defendant or its liquidator today.

[6]      Nor  has  any  Notice  of  Opposition  to  the  plaintiff’s  summary  judgment

application on the counter-claim been filed by the defendant.

[7]      Notwithstanding this, Ms Morris-Lisette for the plaintiff sought summary

judgment from the Court today to effectively dismiss the defendant’s counter-claim.

[8]      Under all the circumstances here, I am satisfied that this is an appropriate matter for the leave of the Court to be granted in terms of s 248(1)(c) Companies Act

1993  for  the  plaintiff’s  summary judgment  application  against  the  defendant  to

proceed. An order to this effect is now made.

[9]      In  considering  that  application  for  summary  judgment  to  dismiss  the defendant’s counter-claim, I note at the outset it was on 11 October 2010 that this application was set down for hearing today, 15 February 2011.

[10]     In that 11 October 2010 Minute I also directed that any affidavit from the defendant in opposition to the plaintiff’s summary judgment application was to be filed and served by 1 November 2010.  Counsel for both parties were present when that Minute was issued.

[11]     As  I  have  noted,  no  opposition  to  the  plaintiff’s  summary  judgment application has been filed nor has any affidavit in opposition been provided by the defendant.

[12]     As general background to this matter, the defendant’s counter-claim against the plaintiff was effectively a response to the plaintiff’s claim set out in a statutory demand served upon the defendant on 16 July 2010.  That statutory demand required payment of the sum of $165,023.37 being a sum of $139,456.15 as the balance of an

account owing for building and hardware goods supplied to the defendant between December 2009 and February 2010, plus $25,567.22 default interest in terms of the plaintiff’s agreed terms and conditions of trade.

[13]     The  defendant’s  counter-claim,  which  was  included  in  its  statement  of defence dated 15 September 2010, effectively claimed that a number of exterior Titan Facade cladding panels manufactured by James Hardie New Zealand Limited and supplied by the plaintiff which formed part of the outstanding debt, were defective and, after installation on a dwelling at Porirua, needed to be removed and replaced at an estimated cost of about $220,000.00 plus GST.  The counter-claim for this sum pleads that these panels breached the implied conditions in the Sale of Goods Act 1908 that they be fit for purpose and of merchantable quality.

[14]     The   defendant’s   counter-claim   therefore   sought   judgment   for   this

$220,000.00 plus GST together with interest and costs.

[15]     The  plaintiff  filed  its  statement  of  defence  to  the  counter-claim  on  28

September 2010 and also at that time filed the present application for summary judgment to dismiss the counter-claim.

[16]     As I understand the position, in essence the defence to the counter-claim notes that the Terms and Conditions of Sale between plaintiff and defendant for the products in question expressly excluded any conditions or warranties under the Sale of Goods Act 1908 and that none of the causes of action in the defendant’s counter- claim can succeed.

[17]     As I have noted, there has been no Notice of Opposition to that summary judgment filed in this matter by the defendant.

[18]     Rule  12.2(2)  enables  a  Court  to  give  judgment  against  a  plaintiff  if  the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.  Here the plaintiff, Bunnings Limited, is effectively the counter-claim defendant.

[19]     McGechan on Procedure at para HR12.2.07 notes that a defendant’s summary judgment application is rather different from a summary judgment application by the plaintiff.  A defendant’s summary judgment application is similar to a striking-out application in that the defendant has to show that the plaintiff cannot succeed in its claim.  Affidavit evidence for a defendant’s summary judgment application is to be provided and if there are material disputes of fact which cannot be resolved on affidavit evidence, summary judgment will inevitably be refused.

[20]     In the present case, the plaintiff has provided an affidavit of Kaake Wallace Albert sworn 24 September 2010 in support of the present summary judgment application.   That affidavit annexes the application for credit account between the parties together with the standard terms and conditions of trade.

[21]     Despite the directions made in my Minute some 4 months ago on 11 October

2010 for the defendant’s opposition to this summary judgment application and affidavit in support to be filed by November 2010, nothing has been filed.

[22]     It can only be assumed that the defendant accepts the factual position and arguments advanced for the plaintiff in support of its summary judgment application.

[23]     Under  all  those  circumstances  therefore  I  am  satisfied  that  summary judgment should be granted here in favour of the plaintiff to dismiss the defendant’s counter-claim against it.

[24]     That said the following orders are now made:

(a)      Summary judgment is granted to the plaintiff against the defendant with respect to the defendant’s counter-claim against the plaintiff outlined in its statement of defence dated 15 September 2010, to the effect that the defendant’s counter-claim is effectively dismissed.

(b)The plaintiff having been successful in this application it is entitled to an  order  for  costs.    Costs  are  awarded  to  the  plaintiff  on  this

application on a 2B basis together with disbursements as fixed by the

Registrar.

[25]     So far as the other application before the Court (the plaintiff’s liquidation application)  is  concerned,  Ms  Morris-Lisette  confirms  that  this  is  yet  to  be advertised.   The plaintiff wishes to await the outcome of the hearing of the other creditor’s application against the defendant due to be heard before this Court on 25

February 2011 before it makes a decision on advertising the present application.  All of this, of course, assumes that the attempt to place the defendant company into voluntary liquidation which was said to have occurred on 21 January 2011 has been unsuccessful.

[26]   Under all the circumstances here the plaintiff’s outstanding liquidation application against the defendant is now adjourned to a call in the List at 10.00 am on 7 March 2011.

‘Associate Judge D.I. Gendall’