Carters Building Supplies Limited v Gill - [2023] NZHC 3788

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1045

[2023] NZHC 3788

BETWEEN CARTERS BUILDING SUPPLIES LIMITED
Plaintiff

AND

VIKRAMJIT SINGH GILL

Defendant

Hearing: 23 November 2023

Appearances:

P J Morris and Ms McManus for the Plaintiff S Raju for the Defendant

Judgment:

20 December 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for summary judgment]

This judgment was delivered by me on 20 December 2023 at 3:00pm
pursuant to r 11.5 of the High Court Rules

……………………………………… Registrar/Deputy Registrar

Solicitors:
Stace Hammond (P J Morris/A McManus), Auckland, for the Plaintiff Aaron Kashyap Law (Shiva Raju), Mt Roskill, Auckland, for the Defendant

CARTERS BUILDING SUPPLIES LIMITED v VIKRAMJIT SINGH GILL [2023] NZHC 3788 [20 December 2023]

Introduction

[1] Carters Building Supplies Limited (Carters) seeks summary judgment against Mr Vikramjit Singh Gill (Mr Gill) as guarantor of EKG Construction Limited’s (EKG) financial obligations to Carters.

Background

[2] On 11 June 2019, Carters signed a credit account application and terms of agreement for supply with EKG (the Agreement), and a deed of guarantee and indemnity with Mr Gill (the Guarantee).

[3] Carters provided various products to EKG under the Agreement, but EKG eventually stopped paying. This left an outstanding amount of $621,558.19, which Carters now seeks to recover under the Guarantee, and Mr Gill accepts remains unpaid.

[4] While Carters seeks summary judgment under the Guarantee in this proceeding, it has also issued a statutory demand, which EKG has a related proceeding to set aside.1

[5] Mr Gill opposes summary judgment arguing it is grossly unfair to hold EKG or himself accountable for this amount when Carters delayed in providing the products to EKG. Carters denies it is responsible for any delays and notes that under the Agreement Carters disclaims liability for any delivery delays.

Carters’ application for summary judgment

[6]Carters seeks orders:2

(a) For orders by way of summary judgment against the respondent in the sum of $621,558.19 (being the amount owing as at 28 February 2023);

1 EKG Construction Ltd v Carters Building Supplies Ltd HC Auckland CIV-2023-404-1052.
2 Notice of interlocutory application by plaintiff for summary judgment against defendant dated 22 May 2023 at [1].

(b) Interest;

(c) Costs.

[7]The grounds on which the orders are sought are:3

(a) On, or about, 11 June 2019 the applicant entered into a credit account application and terms of agreement for supply (“Agreement”) with EKG Construction Limited (“EKG”);

(b) On, or about, 11 June 2019 the applicant and the respondent entered a Deed of Guarantee and Indemnity (“Guarantee”) in which the respondent guaranteed the due and punctual payment of all monies owing at that time or in the future to the applicant by EKG.

(c) The applicant provided EKG with building supplies between 1 September 2022 and 14 March 2023;

(d) EKG has failed to make payment to the applicant for those building supplies.

(e) Despite 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.

Keep reading for free

Create a free CaseChat account to read Carters Building Supplies Limited v Gill and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 3788
Decision Date: 20 December 2023

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide if Carters Building Supplies Limited could be granted summary judgment against Mr Vikramjit Singh Gill, who had guaranteed a debt owed by EKG Construction Limited to Carters. The dispute arose because EKG had failed to pay the amount owing for products supplied by Carters, which stood at $621,558.19 as of February 2023. Carters sought judgment against Mr Gill under the guarantee agreement, while Mr Gill opposed the claim, arguing that Carters had delayed in supplying the products, which had caused losses to EKG and contributed to Carters' losses.

The court had to determine whether Mr Gill's defences—alleging a breach of an implied reasonable delivery time, that Carters' delays had caused losses to EKG, and that it would be inequitable for Carters to enforce the guarantee—were reasonably arguable. The court found that the contract explicitly disclaimed liability for delays in delivery, so no implied term of reasonable delivery time could be added. The court also concluded that there was no breach of any term by Carters, as no such term existed, and therefore, the argument of inequity due to Carters' own alleged breach did not succeed. Furthermore, the court determined that Mr Gill's evidence did not establish a representation by Carters that would support an estoppel claim. The court found that Mr Gill's assertions about the delays were inconsistent with the contemporaneous evidence provided by Carters' account manager, indicating that many of the delays were attributable to EKG. As a result, the court granted summary judgment in favour of Carters against Mr Gill for the amount owing, together with interest and costs.

Orders