Byrne v Rose - [2015] NZHC 3148

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2015-442-000059 [2015] NZHC 3148

BETWEEN
FRANK BYRNE AND CHERIE BYRNE

Plaintiffs

AND

CAROLYN ROSE Defendant

Hearing: 2 December 2015

Appearances:

G M Downing and G C Engelbrecht for Plaintiffs
D Holloway for Defendant

Judgment:

10 December 2015

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Introduction

[1] The plaintiffs carry on business as builders in Golden Bay. The defendant, Mrs Rose, engaged them to construct a dairy shed on her farm near Takaka. They duly did so. In this proceeding they sue Mrs Rose for $450,487.91 representing unpaid invoices relating to this project, together with interest.

[2] The application presently before the Court is for summary judgment against Mrs Rose for the sums stated on two cheques she issued to the plaintiffs, which were dishonoured when presented for clearance. The first cheque was issued for
$88,198.10 on 20 July 2015. The cheque corresponded with an invoice for this sum dated 28 June 2015.

[3] The second cheque was for $86,620.24. This sum corresponded with an invoice in the same amount dated 30 June 2015.

[4] Although sought initially, summary judgment is no longer sought in respect

of the balance of the plaintiffs’ claim. It is not necessary, therefore, to canvass much

F Byrne & C Byrne v Rose [2015] NZHC 3148 [10 December 2015]

of the very extensive evidence presented in affidavits by Mr Byrne and Mrs Rose. This is because the law in relation to claims on dishonoured cheques strictly confines the basis upon which liability in respect of the face value of the cheque may be denied. I refer to the evidence to the extent it bears on this issue.

Summary judgment

[5] Under r 12.2 of the High Court Rules the Court may give judgment against a defendant on a summary basis if a plaintiff satisfies the Court that the defendant does not have a defence to a cause of action in the statement of claim on which a plaintiff relies. The onus of establishing this position rests on the plaintiff.1 The classic exposition of this principle is in Auckett v Falvey:2

On a summary judgment application, the onus is on the plaintiff to show that there is no defence. On the present facts, the plaintiffs are able to pass an evidential onus to the defendants by exhibiting the contract which on its face, entitles them to the remedy they now seek. The defendants are then in a position of having to demonstrate a tenable defence. However, the overall position concerning onus on the application is that at the end of the day the question is whether the plaintiffs have satisfied the Court as to the absence of a defence.

[6] Evidence on applications for summary judgment is given by way of affidavit. It is necessary, therefore, to keep in mind the approach the Court is to take to evidence given in this way, summarised in Pemberton v Chappell:3

Where the defence raises questions of fact upon which the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrne v Rose

Details

AGLC: Byrne v Rose [2015] NZHC 3148
Case: [2015] NZHC 3148
Decision Date: 10 December 2015

CaseChat Overview and Summary

The plaintiffs, Frank and Cherie Byrne, who carry on business as builders, brought an action against Carolyn Rose for the sum of $450,487.91, which represents unpaid invoices relating to a dairy shed construction project on Mrs Rose's farm near Takaka. The application before the court is for summary judgment against Mrs Rose for the sums stated on two cheques she issued to the plaintiffs, which were dishonoured when presented for clearance. The first cheque was issued for $88,198.10 on 20 July 2015, and the second for $86,620.24 on the same date. The plaintiffs argued that Mrs Rose has no tenable defence to the claim for judgment on the dishonoured cheques. Mrs Rose contended that she has three tenable defences: total failure of consideration, partial failure of consideration, and exceptional circumstances. The court found that Mrs Rose has not demonstrated a tenable defence to the claim on the dishonoured cheques. Summary judgment was therefore entered for the plaintiffs against Mrs Rose in the sum of $176,818.34, together with interest at the Judicature Act rate from the dates of the cheques to the date of payment. Costs were reserved and counsel were asked to confer in relation to costs.

Orders