Carters v Cancian - [2020] NZHC 2838

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-470-000166

[2020] NZHC 2838

BETWEEN
CARTERS, a division of CARTER HOLT HARVEY LIMITED

Plaintiff

AND

DANNY JOHN CANCIAN

Defendant

Hearing: 21-22 October 2020

Appearances:

P J Morris and O J W Ward for Plaintiff

D J Cancian in person, assisted by D Simpson (a McKenzie friend)

Judgment:

29 October 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 29 October 2020 at 2.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Stace Hammond, Hamilton

Copy to:
Mr D J Cancian

CARTERS v CANCIAN [2020] NZHC 2838 [29 October 2020]

Introduction

[1] The plaintiff, Carters, a division of Carter Holt Harvey Ltd, is and was at all material times a supplier of building products, including in the Tauranga area. The defendant, Bella Vista Homes Limited (Bella Vista), was, again at all relevant times, a residential building company operating in Tauranga. It opened a credit account with Carters in October 2016 and, between November 2016 and October 2017, Carters supplied building products on that account to Bella Vista. Bella Vista failed to make payment to Carters for much of the product supplied and it is now in liquidation.

[2] The defendant, Mr Cancian, signed a deed of guarantee and indemnity in favour of Carters on 12 October 2016. Under that deed, he irrevocably guaranteed to Carters the due and punctual payment of all monies owing by Bella Vista to Carters. Carters seeks judgment in the sum of $1,078.668.23, together with interest, against Mr Cancian, pursuant to this deed for product supplied.

[3] The amount owing to Carters by Bella Vista is not disputed. Mr Cancian however denies that he is liable under the deed of guarantee and indemnity. He says that he was induced to enter into the deed by a representation made by Carters then Area Sales Manager, Daren Green. He says that Mr Green:

(a)represented to him that his liability under the deed would be limited to
$50,000;

(b)pressured him into signing the deed; and

(c)told him that he did not need to seek legal advice in relation to it.

He further argues (but did not plead) that Bella Vista’s credit limit on its trading account with Carters was initially $50,000, that this limit was unilaterally increased by Carters to $800,000, that this was done without notice to him, and that this amounted to a variation of the deed of guarantee and liability, sufficient to discharge him from liability.

Background

[4] Bella Vista’s primary business was developing residential sections and constructing new homes on those sections. In 2016, it was completing construction of 30 or more homes per year, the majority on land subdivided by it.

[5]Mr Cancian was its sole director.

[6] Bella Vista had several suppliers. One of its largest suppliers was PlaceMakers, through its Tauranga branch. PlaceMakers supplied Bella Vista with the majority of the building materials it required,…

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 Carters v Cancian

Details

AGLC: Carters v Cancian [2020] NZHC 2838
Case: [2020] NZHC 2838
Decision Date: 29 October 2020

CaseChat Overview and Summary

Carters, a division of Carter Holt Harvey Limited, sued Danny John Cancian for $1,078,668.23 plus interest, under a deed of guarantee and indemnity that Mr Cancian had signed in relation to a credit account held by Bella Vista Homes Limited, a residential building company of which he was the sole director. Bella Vista had failed to pay much of the amount owing to Carters and was now in liquidation. Mr Cancian denied that he was liable under the deed of guarantee and indemnity. He claimed that he had been induced to enter into the deed by a representation made by Carters' then Area Sales Manager, Daren Green, that his liability under the deed would be limited to $50,000. He also claimed that Mr Green pressured him into signing the deed and told him that he did not need to seek legal advice in relation to it. He further argued (but did not plead) that Bella Vista's credit limit on its trading account with Carters was initially $50,000, that this limit was unilaterally increased by Carters to $800,000, that this was done without notice to him, and that this amounted to a variation of the deed of guarantee and indemnity, sufficient to discharge him from liability. Justice Wylie rejected all of Mr Cancian's defences. He concluded that the evidence of Mr Green and others was more credible than that of Mr Cancian. He found that there was no inconsistency between the terms of the preferred supply agreement and Carters' standard terms and conditions of sale in relation to the variation of Bella Vista's credit limit. He held that the deed of guarantee and indemnity contained a clause which gave Carters the power to make variations to the contract with Bella Vista, and that this excluded Mr Cancian's right to treat the guarantee as discharged. He granted judgment in favour of Carters against Mr Cancian in the sum of $1,078,668.23, together with interest and costs.

Orders