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 outcome of the case may turn it will not often be right to enter summary judgment.  There may however be cases in which the Court can be confident – that is say, satisfied – that the defendant’s statements as to matters of fact are baseless. The  need  to  scrutinise  affidavits,  to  see  that  they pass  the  threshold  of credibility, is referred to Eng Mee Yong v Lethchumanan [1980] AC 331, 341 and in the judgment of Greig J in Attorney-General v Rakiura Holdings Ltd (Wellington CP23/86, 8 April 1986)..

[7]      In Attorney-General v Rakiura Holdings Ltd the Court said:4

In a matter such as this it would not be normal for a Judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them.  On the other hand, in the

1      Pemberton v Chappell [1987] 1 NZLR 1 (CA).

2      Auckett v Falvey HC Wellington CP296/86, 20 August 1986 at 2.

3      Pemberton v Chappell, above n 1, at 4.

4      Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC).

words of Lord Diplock in Eng Mee Yong v Lethchumanan [1980] AC 331, at

341 E the Judge is not bound:

to  accept  uncritically, as  raising  a  dispute  of  fact  which  calls  for  further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.

Principles of law relating to dishonoured cheques

[8]      Section 47(2) of the Bills of Exchange Act 1908 provides:

Subject to the provisions of this Act, where a bill is dishonoured by non- payment an immediate right of recourse against the drawers or endorsers accrues to the holder.

[9]      In International Ore & Fertiliser Corp v East Coast Fertiliser Co Ltd, the

Court of Appeal said:5

Transcending fine points under the New Zealand rules of procedure is the importance in this country of adhering to fundamental principles of English law about bills of exchange, from which New Zealand law, largely codified in the Bills of Exchange Act 1908, does not differ in any respect material to the present case.   In the interests of the convenience of international trade and New Zealand’s participation therein, it behoves the New Zealand Courts to give full recognition to the special position of bills of exchange.  In that connection this Court touched on the spirit of the bill writ procedure in Begley Industries Ltd v Cramp [1978] 1 NZLR 527, 535-536. The same spirit must govern summary judgment applications in actions on bills of exchange under the new procedure, and it should now be emphasised.

Generally speaking, even between the immediate parties bills of exchange are to be treated as the equivalent of cash.  Except for a total or liquidated partial  failure  of consideration,  a  breach  of  a  background  or  underlying contract by the plaintiff does not afford the defendant a defence to an action on  a  bill,  even  when  the  action  is  between  immediate  parties.     A counterclaim for unliquidated damages cannot be put forward as a set-off in either an action on bill writ under the old procedure or an application for summary judgment under the new procedure.

The plaintiffs’ case

[10]     There is no issue between the plaintiffs and the defendant that the defendant issued the two cheques in question, or that they were dishonoured by her bank.  If that were the end of the matter, application of the principle in International Ore &

Fertiliser Corp directs the Court to a conclusion that they would be entitled to

5      International Ore & Fertiliser Corp v East Coast Fertiliser Co Ltd [1987] 1 NZLR 9 (CA) at 14.

judgment in respect of the sum shown on the face of each cheque, in accordance with the principle enunciated in Auckett v Falvey.   The defendant must therefore demonstrate a tenable defence if the entry of summary judgment is to be avoided, though she does not bear any onus of proof to establish such a defence.  Rather, it is for the plaintiffs to satisfy the Court that the possible defences relied on by Mrs Rose are not tenable.

The case for Mrs Rose

[11]     Mr Holloway, on behalf of Mrs Rose, argues that she has demonstrated three tenable defences:

(a)     there has been a total failure of consideration;

(b)     there has been a partial failure of consideration in a liquidated amount;

or

(c)     that there are exceptional circumstances which  direct that summary judgment should not be entered.

I will deal with these in turn.

Total failure of consideration

[12]     In her affidavit in opposition to this application the defendant raises a number of criticisms of the first plaintiff’s workmanship, and says as well that no code of compliance has been issued for the building under the Building Act, that the building is not compliant with the requirements of the milk processing company which the defendant uses, Fonterra, and that she has been overcharged.

[13]     Mr Byrne says in his affidavit in support of the application, sworn and filed before Mrs Rose’s affidavit, that she had not made any complaint, nor raised any dispute with his firm’s workmanship, or any part of the construction of the dairy shed.  Rather, she had made repeated promises to pay not only the sums claimed on the present application, but also the sums owing on subsequent invoices, and had given various excuses for not doing so, none of which relate to the quality of the

work or suggest that any of the invoices issued by the plaintiffs are not due and payable.  His firm has paid the cost of the materials required to construct the shed, and  paid  its  own  employees  and  contractors.     In  all,  Mrs  Rose  has  paid approximately $69,000  including GST,  but  outstanding invoices  amount  to  over

$450,000.  The dairy shed has been completed, or almost completed, and has been in use by Mrs Rose for some months.

[14]     Mrs Rose criticises the floor of the shed as being too slippery for safe use by cows.  As a result of an accident caused by the slippery floor, one cow had to be put down.   Mrs Rose says this cow was worth $1,500 and she estimates loss of productivity from this cow for the season to be $1,472.  She says three other cows fell on the concrete and as a result she has lost productivity of $4,416 in respect of these animals.  She also says that she has lost $19,320 worth of milk that she has had to tip down the drain because the shed was not operational when required.

[15]     Mrs Rose says that there were problems with drainage channels and sumps, block work around robot cages (milking equipment), rain ingress, a gap into which cows can place their heads and become stuck, and the height of the shed which she says is half a metre below the height she requested.

[16]     There is independent evidence that the surface of the floor may be such that cows can readily slip on it.  There is also a brief report from a firm called Over the Moon Dairy Sheds on aspects of the building.  Repairing the surface of the concrete floor is quoted in the sum of $18,778.93.  The cost of remedial work on drains is estimated at “many thousands (sic) dollars” with a comment from the reporter that he thinks this would be “cost prohibitive”.

[17]     Mrs Rose says the shed is not “Fonterra compliant” and she can only use the shed at present because Fonterra has not inspected it.  Although she produces a copy of what she says is the relevant page from the code of practice of Fonterra for the design and operation of farm dairies, it is not explained how the shed as built is outside the terms of that code.  Mrs Rose also says the shed is not “Assure Quality compliant” but does not explain what is meant by that term.

[18]     Mr Holloway submits that if one cannot supply milk to one’s dairy company from a milking shed, then there has been a total failure of consideration.   If the evidence at trial lays a foundation for a conclusion to that effect, then there may be some force to that argument.  However that is not the position in this case.  The only evidence on the point is as I have set out.  There is no independent evidence on the point.   It is not mentioned, for example, in the report from Over the Moon Dairy Sheds.  There is no evidence from a representative of Fonterra.  Mr Holloway says that Mrs Rose is in a difficult position in relation to Fonterra because if she contacted Fonterra to have the shed assessed, she risks no longer being able to milk from it. As a result, though, the Court is left with only her opinion, given without reasons, that the shed does not comply with Fonterra’s requirements.

[19]     The reference to the shed not being Assure Quality compliant does not assist in establishing a total failure of consideration as there is no explanation at all on what this means.  The lack of a code compliance certificate is of little weight either, because there is no evidence that a code compliance certificate has been applied for, let alone refused.

[20]     Mr  Holloway  submits  that  there  is  a  realistic  limit  on  the  amount  of information that a person in the position of Mrs Rose can obtain and put before the Court in response to a summary judgment application, a submission he makes in the context of the onus of proof to which I have referred.  For all that, though, given that Mrs Rose is using the dairy shed and has her milking and related equipment installed in it, the proposition that there has been a total failure of consideration requires at least some evidentiary foundation beyond supposition (Fonterra, Assure Quality), a general estimation of a drainage problem (as noted above) and a criticism of the roof and other features of the building.  The only more specific evidence in relation to the building concerns the surface on the floor, to which I have referred.

[21]     Mrs Rose also believes that she has been overcharged, on the basis that she thought the dairy shed would cost around $150,000, and that there is an estimate of the building cost in the application for building consent of $254,000.  However, there is no evidence linking Mr Byrne to this estimate, and the building consent was filed by its designer.  How this figure was assessed, or who assessed it, are not known.

There is no evidence that the total cost of the shed exceeded a fair and reasonable cost for building it up to the point where the plaintiffs abandoned the job.

[22]     Even  taking  into  account  all  the  concerns  with  the  shed  enunciated  by Mrs Rose and Over the Moon, the evidence does not show that there is a tenable defence to the claim on the two dishonoured cheques on the basis of a total failure of consideration.

Partial failure of consideration

[23]     Mr Holloway argues that if the Court cannot conclude that Mrs Rose has a tenable defence based on total failure of consideration, she has a tenable defence based on there being a partial failure of consideration.  In support of this proposition, he relies on losses Mrs Rose has incurred, for which she blames Mr and Mrs Byrne, as well as the alleged defects in the building to which I have referred.   Before considering  this  argument  it  is  necessary  to  recall  that  a  partial  failure  of

consideration must be for a liquidated sum.6

[24]     The first sum which Mrs Rose says the plaintiffs are liable for relates to milk which she says she had to waste because the milking shed was not operational. There is evidence sufficient to show that Mrs Rose wanted the shed completed by

15 June 2015 so that she had time to familiarise her cows with its use prior to the beginning of calving.  That date was not met.  Mrs Rose says that as a result she had to milk in an old shed on the property, with three portable milking machines.  This milk  could  not  be  supplied  to  Fonterra  because  it  was  not  hygienic,  so  it  was dumped.   She estimates the value of the milk at $19,320, and also produces an invoice for $2,656 from a company which pumped out the effluent ponds, to which the milk had evidently been sent.

[25]     Secondly, Mrs Rose says that four cows slipped over and were hurt as a result of the slippery floor.  Loss productivity is estimated at $5,888, and the value of one

of these cows, which had to be destroyed, is estimated at $1,500.

6     International Ore & Fertiliser Corp v East Coast Fertiliser Co Ltd, above n 5.

[26]     Thirdly, Mrs Rose says she has a quote for roughening the surface of the dairy  shed  to  avoid  a  recurrence  of  these  accidents,  which  is  in  the  sum  of

$18,778.93.

[27]     Of these claims, only the cost of pumping out the effluent pond, and work on the floor, are the subject of an account and a quotation.

[28]     A liquidated amount is one which has been quantified by the terms of a contract or an agreement or by way of arbitration or previous litigation.   If it is outside these terms it must be capable of arithmetical calculation without investigation of the amount claimed beyond inquiry into well-established criteria,

such as, for example, scale fees.7    The phrase “liquidated demand” as used in the

rules of Court in England is described in this way in Bullen & Leake & Jacob’s

Precedents of Pleadings:8

A liquidated demand is a debt or other liquidated sum.  It must be a specific sum of money due and payable, and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic.  Otherwise even though it be specified, or quantified, or named as a definite figure that requires investigation beyond mere calculation, it is not a “liquidated demand” but constitutes “damages”.

[29]     Whilst giving the impression of being straight-forward, these statements of principle  have  proved  more  complicated  in  application.    On  the  present  case, however, the claims by Mrs Rose for wasted milk, the value of a cow, and for lost productivity,  are  not  shown  to  be  liquidated  sums.     They  appear  to  be  her assessments, but they are unsupported by any evidence showing the manner in which they might be calculated and thus shown to be liquidated sums.  Only the claims in relation to the cost of pumping out the effluent pond and repairing or altering the surface of the milking shed floor could possibly be described as within the concept of liquidated sums.  For present purposes, I will accept that it is arguable that they are liquidated claims.  The total of these is $21,434.93.  The other claimed losses are

not relevant to the present issue.9

7      See Paterson v Wellington Free Kindergarten Association Inc [1966] NZLR 468 at 471, and on appeal Paterson v Wellington Free Kindergarten Association Inc [1966] NZLR 975 (CA).

8      IH Jacob Bullen & Leake & Jacob’s Precedents of Pleadings (12 ed, Sweet & Maxwell, London,

1975) at 153.

9      International Ore & Fertiliser Corp v East Coast Fertiliser Co Ltd above, n 5.

[30]     The claim for the first of these, pumping out the effluent pond, is derived from Mrs Rose’s allegation that the plaintiffs are in breach of their contract with her for late completion of the dairy shed.  By the time the cheques were issued this cost had been incurred, yet it was not given as a reason for not paying at that time, nor until Mrs Rose swore her affidavit and served  it in November.   Neither of the invoices from the plaintiffs in respect of which the cheques were issued shows with any clarity that it relates to the floor which is the second liquidated claim.

[31]     The first of these invoices was rendered to pass on to Mrs Rose the exact sum owed  by the  plaintiffs  to  Cold  Store  Construction  (2008)  Limited,  without  any addition or alteration, and their work appears to relate entirely to the roof.   The second invoice is for sums said to have been paid, or to be owed, to a number of subcontractors, as well as for plant hire materials and labour.  There is reference to concrete on this invoice, but not as a separate item.  The amount which relates to concrete cannot be assessed.  Nor is it clear that any part of this invoice relates to concrete poured for the floor, as distinct from concrete poured for any other purpose in the construction of the building.  It is not shown that the claim for changing the surface of the concrete floor relates to work covered by the second invoice in respect of which a dishonoured cheque was issued.

[32]     For these reasons I find that Mrs Rose has not demonstrated a tenable defence based on a partial failure of consideration in respect of the work for which the dishonoured cheques were issued.

[33]     Counsel did not specifically argue whether it must be shown that an alleged partial failure of consideration is directly related to either of the invoices, or whether it is sufficient to show a partial failure of consideration in the context of the contract works as a whole.  My conclusion above is based on the former, but if it is the latter, there is in any event a very substantial sum still claimed by the plaintiffs under the contract, against which the partial failure of consideration, if established, could be set off.   I am satisfied that there is no tenable defence to the claims on the two dishonoured cheques based on a partial failure of consideration.

Exceptional circumstances

[34]     Mr Holloway argues that there are exceptional circumstances which should result in summary judgment on the two dishonoured cheques being declined.   He refers to duress at the time the cheques were signed, an excessive charge for GST in the second of the two invoices, and the plaintiffs overcharging for their work.  I deal with these in turn.

[35]     I discuss, first, the cheques.  Section 29(2) of the Bills of Exchange Act 1908 provides that a cheque is defective when it is obtained by duress.   Mrs Rose’s allegation that the two cheques were written under duress is stated, first, in these terms:

At the end of the day, the night before I wrote out the two cheques, which were then dishonoured, Frank approached me and told me I had to write out these cheques.   I didn’t want to write these cheques out but I felt under duress to do it.  He gave me a piece of timber with these amounts written on it.  I had never received these invoices.  It was then that I thought I had better go and get financing as the building consent issues had consumed me and I hadn’t been getting on with the land sales.

[36]     I accept Mr Holloway’s submission that the essential element of duress is coercion.  However, although Mr Byrne does not respond to this evidence, I find it unconvincing when considered against other evidence given by Mrs Rose, and other surrounding facts.

[37]     The cheques concerned have been produced in evidence.  The first is cheque

71, for $88,198.10.  It is dated 20 July 2015, though it must have been written out before  then  because  the  copy  of  the  cheque  produced  shows  that  it  was  first presented to the plaintiffs’ bank on 17 July.  This is the cheque which corresponds with an invoice for the charges of Cold Store Construction.

[38]     The second cheque, numerically, is cheque 80 which bears the same date. This is for $86,620.24.  This corresponds with the sum claimed on an invoice dated (erroneously) 31 June (though Mrs Rose says she did not receive either invoice). This was presented to the plaintiffs’ bank account on 20 July.

[39]     The third cheque in sequence is number 82.  It, too, bears the date 20 July

2015, and is for the same sum as the first cheque, $88,198.10.  This was presented to the bank on 22 July 2015.  None of these three cheques were honoured.  The third cheque is evidently a replacement for the first cheque so need not be considered further.   The plaintiffs sue on the first two.   It is presumably those two cheques which Mrs Rose says she signed the day after Mr Byrne saw her.

[40]     Although in the passage quoted Mrs Rose says she did not want to write out the cheques but did so because Mr Byrne told her she had to, this does not sit easily with  other  passages  in  her  own  evidence.    First,  just  after  the  passage  quoted, Mrs Rose says that she did not want to make waves at the time because she just needed the work to get going and she did not wish to get offside with the builder. She needed her shed to be completed.  She was told by her bank, ANZ, that it would release security over some lifestyle blocks of land she owned so she could use that security for an advance from another lender.  This suggests that drawing the cheques was done in order to keep her project going, not because she was coerced into doing so.  Indeed, given the urgency that Mrs Rose herself ascribes to the completion of the project, it seems illogical to say that she was under duress in paying her builder, when doing so was plainly the pathway to achieving that outcome.

[41]     Later in her affidavit Mrs Rose refers again to the signing of cheques.  She says “On both occasions Frank stood over me and demanded that I write out a cheque.  I did not feel like I had a choice.  I never received invoices in advance.”

[42]     This evidence is to similar effect as her earlier evidence, which I have quoted, though in stronger terms.   There is one material difference however.   In the first passage, Mrs Rose says Mr Byrne saw her the night before she wrote the cheques, but  in  the  second  passage  she  says  he  stood  over  her.    This  difference  is  not reconciled by other evidence.

[43]     Further, when Mrs Rose says that she wrote out the cheques, she thought they would be honoured.  While she accepts that the cheques were in fact dishonoured, she says this was at a time when she was arranging finance from a finance company, and when she wrote the cheques she thought that they would be honoured as a result.

This, too, is inconsistent with her having signed the cheques under duress.  So too is the fact that Mrs Rose later wrote out and signed a replacement cheque for one of the cheques she now says she wrote and signed under duress.

[44]     As well, there is in evidence a series of text messages between Mrs Byrne and Mrs Rose.   Mrs Byrne was pressing Mrs Rose for payment of outstanding invoices, including those which were the subject of the dishonoured cheques.  I need not quote the texts in this judgment.   It is sufficient to observe that there are a number of references by Mrs Rose to the ANZ having agreed to advance funds but then changing its position, to her endeavouring to arrange funding from a finance company, to the point of signing documents which then seemed to have disappeared, to her having seen legal advisors in relation to these documents, and to her listing a property for sale in order to raise funds.

[45]     Missing, however, from all these communications is any reference to her having issued the cheques under any form of duress.   Rather, all the emails are consistent  with  Mrs  Rose  signing  the  cheques  believing  that  they  would  be honoured, and taking steps with her bank and a finance company and, indeed, by way of putting property on the market, to ensure that the payments were met.  I do not accept that an evidentiary foundation has been laid for a tenable defence of duress.

[46]     The second issue is overcharging of GST.   Mrs Rose says that the second invoice contained an element of overcharging, because the sums said to be charged by various subcontractors and suppliers are quoted on a GST inclusive basis, but after being added to a subtotal, the plaintiffs then added GST again.  Mr Holloway calculates that the second invoice overstates the sum correctly payable by approximately $5,000, and says that as a result the second cheque was drawn for a sum exceeding the amount properly payable, by approximately that amount.  I do not understand this point to be in dispute.   However, it is not an answer to the claim presently before the Court.  In Affco New Zealand Ltd v Aotearoa Coolstores Ltd,

summary judgment was sought on a dishonoured cheque in the sum of $435,663.89, but the cheque should have been issued for the sum of $418,000.10  The Court said:

[32]  There is no evidence here that the Defendant took the step of stopping payment on the cheque because it was for an incorrect amount.  Nor was any issue raised over the interest question prior to the Defendant filing its notice of opposition to the present application on Friday last 21 September 2007.

[33]     In  my  view  it  is  reasonable  to  presume  that  the  cheque  was dishonoured simply because there were insufficient funds in the Defendant’s account at the time to meet the cheque.

[47]     The same position applies in this case.  Mrs Rose did not stop payment of this cheque,  whether  because  it  was  for  an  incorrect  amount,  or  at  all.     It  was dishonoured because there were insufficient funds in her account.  There is ample evidence from Mrs Rose that she was endeavouring to ensure that there were funds to meet the payments due to the plaintiffs, and that she was keen that their work should continue so her shed became available as soon as possible.  There is evidence from her that she believed the cheque would be met when it was drawn.  There is evidence that she was expecting her bank to meet it, but the bank changed its mind, and that she then endeavoured to arrange alternative funding.  None of this evidence is consistent with the exact amount of the cheque being in any way material to her decision to write it.   I do not, therefore, accept that this lays the foundation for a tenable defence.

[48]     The third argument presented by Mr Holloway is that the sum of the cheques issued by Mrs Rose, together with the payments she had made already before she signed  them,  exceed  the  amount  she  should  have  been  charged  for  the  shed. Mrs Rose says on one hand she expected the shed to cost about $150,000, and on the other hand notes that there was an estimate of the likely building cost of just over

$250,000 in the documents produced to the Tasman District Council for the purpose of obtaining a building consent.  There is no evidence, however, that the plaintiffs gave a quote or estimate to Mrs Rose to build her shed, nor that they were involved in  the  estimate  contained  in  the  documents  presented  to  the  Council.    Those

documents were prepared and filed by another party.

10     Affco New Zealand Ltd v Aotearoa Coolstores Ltd HC Palmerston North CIV-2007-454-597,

24, 28 September 2007.

[49]     Mr Holloway says, however, that given the estimate in the Council document, and the fact that honouring the two cheques would have brought payments to the sum of $267,000, judgment on this application would result in her paying more than the shed should have cost.

[50]     There are difficulties with this argument.  First, in terms of the principle of law enunciated in International Ore & Fertiliser Corp v East Coast Fertiliser Co Ltd, this argument is irrelevant to the issue before the Court.  Secondly, the evidence before the Court is insufficient to show this as a tenable defence to this application. The fact that an unknown party made an estimate of the likely cost to the building for the purposes of applying for a building consent is not demonstrated to arguably bind the plaintiffs to a maximum sum which they could charge.

[51]     Thirdly, Mrs Rose must have known when she signed the cheques that it would put her total payments up to a sum which was more than $117,000 in excess of the sum which she now says she thought the dairy shed would cost.   Fourthly, there is no evidence that she cavilled at the cost at any time prior to filing her opposition to this application for summary judgment.  Fifthly, evidence which she presents shows that she expected the cheques to be met, that she issued a second cheque to replace the first one when it was dishonoured, and that the reason she gives for the cheques not being honoured was a change of heart by her bank.  She then took active steps to obtain monies from other sources.

[52]     For these reasons I reject this argument.

Conclusion

[53]     Mrs  Rose  has  not  demonstrated  that  she  has  a  tenable  defence  to  the plaintiffs’ claim for judgment on the two  dishonoured cheques.   It  follows that judgment must be entered for the plaintiffs.  Any issues Mrs Rose has in relation to the sums which she has been charged, or the quality of the plaintiffs’ workmanship, can be raised, if relevant, at trial.  Well prior to that Mr and Mrs Byrne will need to reconcile their invoices to ensure there is no overcharging for GST.  An amended statement of claim can then be filed.   Apart from issues relating to drainage, in respect of which no estimate of possible cost is given, all other claims added together

appear to be significantly less than the balance Mr and Mrs Byrne maintain remains owing to them, even after judgment is entered and payment made for the sums now claimed on the two dishonoured cheques.

[54]     I enter summary judgment 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 two cheques, 20 July 2015, to the date of payment.

[55]     As discussed with counsel, costs are reserved.  Counsel are asked to confer in relation to costs and only if necessary, they may file memoranda not exceeding three pages in length, sequentially starting with the plaintiffs within five working days and

followed by the defendant within a further three working days.

J G Matthews

Associate Judge

Solicitors:

McFadden McMeeken Phillips, Nelson. Glasgow Harley, Nelson.