Freshmax NZ Limited v Santa Rosa Orchards Limited
[2014] NZHC 2277
•19 September 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2014-441-000043 [2014] NZHC 2277
BETWEEN FRESHMAX NZ LIMITED
Appellant
AND
SANTA ROSA ORCHARDS LIMITED First Respondent
OLIVER THOMAS RYAN Second Respondent
Hearing: 13 August 2014 Appearances:
M Keall for appellant
D Kerr for respondentJudgment:
19 September 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Freshmax NZ Ltd (Freshmax), is a large-scale fruit exporter. Freshmax supplies seasonal loans to growers who supply fruit to it to provide liquidity before that fruit is sold. The loan and supply agreements between Freshmax and those growers provide for the loans to be deducted from grower payments. The supply agreements provide for deduction of commission and a range of other costs before the balance is paid to the grower.
[2] The first respondent, Santa Rosa Orchards Ltd (Santa Rosa), had a loan and supply agreement with Freshmax between 2007 and 2010.
[3] The second respondent, Mr Ryan, guaranteed Santa Rosa’s repayment of the loans from Freshmax.
FRESHMAX NZ LTD v SANTA ROSA ORCHARDS LTD [2014] NZHC 2277 [19 September 2014]
[4] Freshmax is suing Santa Rosa in the District Court for the outstanding balance of the 2010 seasonal advances. The amount claimed is approximately
$53,000.
[5] By way of set-off and counterclaim Santa Rosa alleges that Freshmax failed to fully account for the sale proceeds of the fruit it supplied and that Freshmax deducted amounts for costs it had not incurred or amounts in excess of costs it incurred (the Counterclaim) between 2007 and 2009.
[6] Santa Rosa filed a third amended statement of defence and counterclaim on
29 November 2013. Freshmax subsequently applied to strike out the parts of that statement dealing with the Counterclaim. In a reserved decision of 7 March 2014
Judge Rea declined that application.1
[7] Freshmax now appeals against that decision.
Background
[8] To consider this appeal, it is necessary to record the procedural background in some detail.
The initial pleadings and discovery
[9] Freshmax commenced proceedings in the High Court in Napier against Santa Rosa in December 2011, and sought summary judgment. Santa Rosa opposed and a hearing was set for 16 March 2012. Before that hearing took place, those proceedings were transferred by agreement to the District Court. Consent orders were then made for discovery on wide terms.
[10] A short while later, Santa Rosa filed its statement of defence and counterclaim. As relevant, Santa Rosa counterclaimed that Freshmax had deducted
excess commission2 and had made deductions for other costs it had not incurred.
1 Freshmax New Zealand Ltd v Santa Rosa Orchards Ltd DC Hastings CIV-2011-041-000825,
7 March 2014.
2 Santa Rosa no longer pursues the allegation that commission was deducted otherwise than at the agreed rate. Santa Rose has replaced that allegation with its assertion that Freshmax has not fully accounted for sale proceeds.
[11] Santa Rosa also pleaded that it had asked Freshmax to substantiate the commission and cost deductions claimed, and that it had failed to do so.
[12] In August 2012 each of Freshmax and Santa Rosa provided their lists of documents to each other.
[13] Santa Rosa then applied to strike out Freshmax’s claim for failure to fully comply with the consented discovery orders and Freshmax applied for further particulars of the Counterclaim.
[14] Those applications came before Judge Mackintosh on 9 November 2012.3
The first District Court decision
[15] Judge Mackintosh decided that Freshmax was not bound to make discovery in accordance with the consent order: the scope of discovery would be determined by the pleadings. On that basis she declined Santa Rosa’s strike out application.
[16] Judge Mackintosh found that Santa Rosa’s pleading lacked sufficient particularity, and granted Freshmax’s application. She ordered Santa Rosa to provide further particulars of its set-off and counterclaim and extended the time for Freshmax to comply with the discovery order until 30 working days after full particulars had been provided. Santa Rosa was to specify the commission payments and cost deductions challenged by reference to particular final invoices and the date or dates on which the request to substantiate had been made. The Judge also directed that Santa Rosa should provide reasons for its assertion that the deduction was in excess of the agreed rate of commission or was with respect to costs not incurred.
[17] Santa Rosa appealed Judge Mackintosh’s decision that it provide those particulars to the High Court. Santa Rosa argued that Freshmax should be required to provide full discovery on the terms consented, before Santa Rosa could be asked to provide any further particulars.
The High Court decision
[18] Justice Hansen dismissed Santa Rosa’s appeal.4
[19] On the question of the order for Santa Rosa to provide further particulars, he found:
[17] The further particulars sought are primarily directed to establishing the particular transactions to which each allegation is directed. Santa Rosa supplied fruit to Freshmax over a period of four years. Freshmax is plainly entitled to know which of the numerous transactions – between 100 and 150 invoices I was told – the claims relate to. These particulars will need to be provided in relation both to the pleading that will replace the so-called commission cause of action and those sought in relation to paras 24 and 26 of the amended statement of claim.
[18] The only further particular ordered which, in my view, cannot properly be sought is subpara (c) in relation to para 26 [reasons]. Unlike the other particulars sought, I cannot see how Santa Rosa could provide those particulars in advance of discovery. It is not clear to me, in any event, that such particulars are necessary to inform the Court and Freshmax of the basis of Santa Rosa’s claim.
[20] On the question of the timing of discovery by Freshmax, Hansen J found that the Judge had been right to resist Santa Rosa’s application to require Freshmax to comply with the order for discovery in advance of particulars being provided. He agreed that the further particulars sought by Freshmax were necessary to delineate the scope of discovery. On the current state of the pleadings, it was not clear which transactions were the subject of complaint.
[21] Justice Hansen then discussed whether Freshmax should be required to comply with the literal terms of the original, consented, discovery order which it agreed to without knowing the scope of Santa Rosa’s counterclaim and without a proper appreciation of the practical difficulties of compliance.
[22] After considering the affidavit evidence, in particular that provided by Freshmax’s financial controller, Michaele Clubb, in the District Court, he concluded that Freshmax had a strong case to be relieved from the rigours of literal compliance with the consent order. He referred to the power provided by r 3.58 of the District
Court Rules, applying r 8.17 of the High Court Rules for variation of discovery orders. Justice Hansen concluded:
[23] Clearly, if full and literal compliance with the order is as onerous as Ms Clubb anticipates, the power to vary will be available. At this stage, however, as discussed with counsel at the hearing, the focus must be on providing initial discovery sufficient to substantiate the basis on which prices and costs were calculated. I would expect this to include contemporary documents that are sufficient to at least provide an accounting of the way prices and costs were arrived at. The question of whether a further layer of discovery is required or can be justified may be explored following discovery on that basis.
The second statement of defence and counterclaim
[23] Following Hansen J’s decision, the respondents filed a second amended statement of defence and counterclaim on 3 July 2013. The counterclaim pleadings were replaced with a more detailed pleading (some 21 paragraphs in all) which separately, but in a parallel fashion, addressed the question of Freshmax’s alleged failure to account for the full value of export apples and its unauthorised deductions. In essence, the additional detail pleaded Freshmax’s invoicing procedures and, as relevant, alleged:
25. All of the final buyer-created tax invoices issued by the Plaintiff in respect of its purchase of apples for export from the First Defendant between 2007 and 2009 inclusive failed to disclose correctly the net FOB value of the First Defendant’s apples.
26. In every final buyer-created tax invoice issued by the Plaintiff to the First Defendant for export apples it purchased from the First Defendant between 2007 and 2009 inclusive, the Plaintiff materially understated the net FOB value achieved by it on its on-sale of the First Defendant’s apples.
…
35. On every occasion between 2007 and 2009 inclusive on which the Plaintiff made a deduction from the post-commission price payable to the First Defendant for its export apples for ‘documentation’, ‘finance cost’, ‘finance and insurance’, ‘internal logistics’, ‘quality compliance’,
‘quality control and preshipment’, ‘storage treatment’, ‘storage’,
‘market access’ or ‘levies’, the Plaintiff had either not itself incurred the cost of the particular deduction in relation to the First Defendant’s
apples, or had incurred a cost for the particular deduction in relation to
the First Defendant’s apples which was materially less than the amount
levied on the First Defendant for the particular deduction.
36. In relation to every instance between 2007 and 2009 inclusive where the Plaintiff has made a deduction from the purchase price payable to the First Defendant for its export apples but has not, in fact, itself incurred the cost of that deduction in relation to the First Defendant’s fruit, the
Plaintiff is liable to account to the First Defendant for the full amount of the deduction made.
37. In relation to every instance between 2007 and 2009 inclusive where the Plaintiff has made a deduction from the purchase price payable to the First Defendant for its export apples and has itself incurred the cost of that deduction in relation to the First Defendant’s fruit in a sum materially less than the amount levied on the First Defendant for the particular deduction, the Plaintiff is liable to account to the First Defendant for the difference between the sum levied on the First Defendant and the sum actually incurred by the Plaintiff.
[24] Following receipt of that second amended statement of defence and counterclaim Freshmax advised Santa Rosa that the amended pleading did not comply with the Court order. Specifically, Freshmax said:
Contrary to the High Court decision your client has persisted with the approach of including all transactions over a three year period by challenging all prices and all deductions in every transaction over that period.
[25] Freshmax indicated that unless Santa Rosa abandoned the counterclaim, or filed a compliant pleading, it would apply for strike-out.
[26] Santa Rosa then applied to recall Hansen J’s decision so that the issue, as to whether or not that decision precluded Santa Rosa – as Freshmax had asserted – from being able to challenge all export apple transactions in the relevant period, could be clarified. Freshmax opposed the recall application and Hansen J declined it.
[27] Santa Rosa then requested a transcript of the hearing, and Hansen J declined that as well. His judgment, he said, took effect according to its tenor
[28] Freshmax then applied to the District Court to strike out Santa Rosa’s second
amended statement of defence and counterclaim.
The second District Court decision
[29] Judge Rea concluded:5
5 Freshmax New Zealand Ltd v Santa Rosa Orchards Ltd DC Hastings CIV-2011-441-000825,
4 November 2013 at [9]-[10].
The High Court, and before the High Court, Judge Mackintosh, laid out with great particularity what needed to be included. There is no individual reference in the second amended statement of defence and counterclaim dealing with matters on a final invoice basis, on an individual basis, or in any way as required by the previous decision. That is met by Mr Kerr submitting that would lengthen the pleading and would not make it any more particular than it already is.
With respect to that submission, the length of the pleading, or its particularity, is irrelevant outside of the orders that the defendants were required to comply with. I do not accept that the current pleading meets what Judge Mackintosh and the High Court required and, therefore, it does not comply with the orders. …
[30] Judge Rea, however, declined Freshmax’s application for strike-out. Rather, he ordered that Santa Rosa was to have 28 days so that the issues that he had highlighted could be incorporated into the statement of claim and counterclaim.
[31] That judgment was not appealed by Freshmax. Santa Rosa filed a third amended statement of defence and counterclaim on 29 November 2013.
[32] Paragraphs [25]-[26] and [35]-[37] as set out above were repleaded in the following terms:
25.In respect of each of the transactions set out at Appendix A hereof (which relate to the Plaintiff’s purchases of fruit for export from the First Defendant between 2007 and 2009 inclusive), and recorded in the final invoices referred to, the Plaintiff did not disclose the Net FOB values achieved by it on the on-sale of the relevant fruit, but disclosed a return to be credited to the First Defendant after the deduction of undisclosed commission and other unidentified and unquantified charges.
26.Each of the disclosed returns referred to in the preceding paragraph, and set out in Appendix A hereof, was calculated on the basis of net FOB values which were undisclosed but which were incorrect and materially lower than the net FOB values actually achieved by the Plaintiff on its on-sale of the relevant fruit.
27.In respect of each of the transactions set out at Appendix B hereof (which relate to the Plaintiff’s purchases of fruit for export from the First Defendant between 2007 and 2009 inclusive), and recorded in the final invoices referred to, the Plaintiff did disclose net FOB values for the fruit to which the transactions related, but the values disclosed were materially lower than the actual net FOB values achieved by the Plaintiff on its on-sale of the First Defendant’s fruit.
…
34.In respect of each of the transactions set out at Appendix A hereof (which relate to the Plaintiff’s purchases of fruit for export from the First Defendant between 2007 and 2009 inclusive), and recorded in the final invoices referred to, the Plaintiff made undisclosed deductions from the (also undisclosed) net FOB values achieved by it on the on-sale of the First Defendant’s apples, before identifying the returns to be credited to the grower.
35.Each undisclosed deduction in each transaction referred to in the preceding paragraph, and set out at Appendix A, was unauthorised because the Plaintiff had either not itself incurred the cost of the particular deduction in relation to the First Defendant’s fruit, or had incurred a cost for the particular deduction in relation to the First Defendant’s fruit but the cost incurred was materially less than the amount levied on the First Defendant for the particular deduction.
36.In respect of each of the transactions set out at Appendix B hereof (which relate to the Plaintiff’s purchases of fruit for export from the First Defendant between 2007 and 2009 inclusive), and recorded in the final invoices referred to, the Plaintiff identified and quantified the deductions made by it from the stated net FOB value in respect of each transaction.
37.Each disclosed deduction in each transaction referred to in the preceding paragraph, and set out at Appendix B, was unauthorised because the Plaintiff had either not itself incurred the cost of the particular deduction in relation to the First Defendant’s fruit, or had incurred a cost for the particular deduction in relation to the First Defendant’s fruit, or had incurred a cost for the particular deduction in relation to the First Defendant’s fruit but the cost incurred was materially less than the amount levied on the First Defendant for the particular deduction.
[33] Appendices A and B contained detailed data from the relevant Freshmax invoices by reference to particular transaction dates and invoice numbers.
[34] Freshmax remained of the view that the third amended statement of claim was still non-compliant with Hansen J’s order. In memoranda for a telephone conference on 10 December 2013 it stated:
For all the length and detail of schedules A and B the third amended pleading singularly fails to allege specific amounts on an invoice by invoice basis in relation to the “failure to account” claim (paragraph 17-30 & 58) or the “improper deduction” claim (paragraphs 31-40 & 59-60). The schedules themselves appear to cover all invoices over a 3 year period but merely rehearse the contents of the invoices.
It is still not possible to extract a figure from the amended pleading or the schedules thereto.
The strict injunction against unquantified blanket allegations has been ignored for a third time.
The challenged District Court decision
[35] The matter was further considered by Judge Rea at a hearing on 19 February
2014, and a reserve judgment issued on 7 March 2014. The issues before the Judge were whether the third amended statement of claim complied with Hansen J’s order and if not, whether the relevant parts of the pleading should be struck out. As relevant, the Judge held:6
The Defendants were therefore [by Hansen J’s decision] required to specify the particular instances where they are claiming the Plaintiff has falsely or incorrectly recorded the sale proceeds of fruit, and also specify the particular instances where they are claiming the Plaintiff made deductions from that price for costs which were not in fact incurred.
The third amended statement of defence and counterclaim does identify, by invoice, every specific transaction between the parties which the Defendants claim is either a failure to account or an unauthorised deduction. In my view the third amended pleadings have complied with the order that was issued by Rodney Hansen J, as that order did not require the defendants to quantify their claim at this time. That those [invoices] identified essentially cover all transactions between the parties is not explicitly prohibited by Justice Hansen’s order.
Case on appeal
Freshmax
[36] Freshmax advanced four separate grounds of appeal. Three of those are substantially the same: that is, the pleaded allegations do not comply with Hansen J’s decision as that decision:
(a) precludes Santa Rosa from counterclaiming in relation to all, or at least a very large percentage of the transactions between it and Freshmax; and/or
(b)precludes Santa Rosa from counterclaiming in relation to all, or at least a very large percentage of those transactions unless it quantifies the allegations; and/or
(c) was correctly applied in the second District Court decision to preclude Santa Rosa from counterclaiming in relation to all, or at least a very large percentage of the transaction.
[37] As a further or alternative ground of appeal Freshmax argues that the repleaded allegations are inherently speculative and untenable, as belied by their wide scope.
[38] Santa Rosa argues that it has done precisely what Hansen J and Judge Rea required. Moreover, its counterclaim pleading clearly identifies the case Freshmax must argue. Santa Rosa points to the important distinction between pleadings and evidence.
Analysis
[39] After that lengthy introduction, my reasoning and conclusions can be expressed reasonably succinctly.
[40] I do not consider that Hansen J’s decision precluded Santa Rosa from pleading, as it has, that Freshmax failed to account and/or deducted improperly on each occasion when it made payments to Freshmax with respect to export apples supplied between 2007 and 2009. Justice Hansen’s comments at [17] of his judgment are to be understood by reference to the state of the pleadings at that time, as set out at [10] of this judgment. When seen in that context, Santa Rosa has now
specified the transactions in question. As Hansen J observed:7
…However, the further particulars sought by Freshmax are necessary to delineate the scope of discovery. On the current state of the pleading, it is not clear which transactions are the subject of complaint. Freshmax cannot be expected to comply with the order until the scope of Santa Rosa’s claim is clarified in this respect.
[41] Like Judge Rea, I am satisfied that Santa Rosa has provided the clarification
sought by that aspect of Hansen J’s decision.
[42] Freshmax’s objection to that wide-ranging claim appears, at least in part, to be directed at the implications for discovery that arise thereby. But those implications have already been addressed by Hansen J. As he concluded:
[23] Clearly, if full and literal compliance with the order is as onerous as Ms Clubb anticipates, the power to vary will be available. At this stage, however, as discussed with counsel at the hearing, the focus must be on providing initial discovery sufficient to substantiate the basis on which prices and costs were calculated. I would expect this to include contemporary documents that are sufficient to at least provide an accounting of the way prices and costs were arrived at. The question of whether a further layer of discovery is required or can be justified may be explored following discovery on that basis.
[43] In my view, to the extent that Freshmax’s objection to the third amended statement of claim reflects its concerns as to the implications for discovery, Hansen J has already indicated the approach Freshmax may take.
[44] I do not think the reliance placed by Freshmax on Santa Rosa’s application for recall, and the implications it sought to draw from that and from Hansen J’s decision to decline that application, are helpful. As Hansen J himself observed, his decision is to be construed in accordance with its tenor. I find nothing in that tenor to suggest, as Freshmax argued, that Hansen J precluded Santa Rosa from particularising its allegations in the manner that it has as regards a large number of transactions.
[45] I turn now to Freshmax’s alternative, or fourth, ground of appeal that the pleadings should be struck out as they are so inherently speculative and untenable they cannot be assumed to be true and so do not disclose a reasonable cause of action. As far as I can tell from the record, and reviewing the judgments in these proceedings to date, that argument has not previously been considered. I was, as I indicated at the hearing, uncertain therefore as to whether it was open to Freshmax to advance that ground of appeal before me. Mr Keall advised me, however, that on Freshmax’s behalf he had made that argument before Judge Rea, and in Court before me read from his submissions to the Judge. I therefore will consider that argument.
[46] Writing for the majority of the Supreme Court in North Shore City Council v
Attorney-General Blanchard J observed that:8
[146] The principles are well settled. The statement of them by
Richardson P in Prince and Gardner is authoritative:9
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed …; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material …
…
McLachlin CJ observed for the Court in the very recent Supreme Court of Canada case, Imperial Tobacco: “A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven”.10
[47] There is nothing in Santa Rosa’s allegations as pleaded that make them so inherently improbable as to establish they are “clearly untenable” or “manifestly incapable of being proven”. Freshmax’s argument that Santa Rosa has failed to identify underlying reasons or objective grounds for making the allegations suffers from the difficulty identified by McLachlin CJ in his judgment the Supreme Court
relied on in North Shore City Council v Attorney-General above, that:11
This fundamentally misunderstands what a motion to strike is about. It is not about evidence, but the pleadings. The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike.
[48] I acknowledge that there is currently a divergence of views as to whether this basic position is altered where fraud is alleged. That divergence of views is relevant because, as Judge Mackintosh recognised, Santa Rosa’s counterclaim is essentially an allegation of theft based on hearsay. She reached that conclusion by reference to Santa Rosa’s pleading together with the following statements made by Mr Ryan in an
affidavit:12
8 North Shore City Council v Attorney-General [2012] NZSC 49, [2012] NZLR 341 at [146].
9 Attorney-General v Prince and Gardner [1998[ 1 NZLR 262 (CA) at 267. These principles were also endorsed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45 at [33].
10 R v Imperial Tobacco Canada Ltd [2011] 3 SCR 45 at [21] per McLachlin CJ for the Court.
11 R v Imperial Tobacco Canada Ltd, above n 10, at [23].
12 At [19].
84.Through my contacts in the industry I am aware of a perception amongst growers that there is also another way in which Freshmax takes more “commission” than it is entitled to. It is my understanding that Freshmax has a practice of not declaring the sale price in cases where it has achieved an exceptionally high return. Instead, it declares a lower return, pays the lesser amount to the grower, and pockets the difference. Whilst this may sound like no more than rumour, it has been independently confirmed to me by a former Freshmax employee, and I raise it because it causes me considerable concern.
[49] The Judge recorded that Mr Kerr, for Santa Rosa, confirmed that the allegation was one of fraud although fraud was not specifically pleaded. The Judge noted that where fraud was imputed the allegation must be stated with particularity.
[50] In that context, Associate Judge Bell in Ng v Harkness, stated that:13
[44] It follows that a plaintiff must be able to show a proper case, that is, a prima facie case, for alleging fraud or dishonesty at the time of filing the pleading..
[51] In the course of reaching that conclusion Associate Judge Bell cited the Supreme Court’s statement in Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd that:14
…where a defendant in a proceeding involving the fraud exception applies to strike it out, the plaintiff is required to discharge the onus of showing it has a case with an evidential foundation amounting to a prima facie case of fraud.
[52] The Supreme Court there, however, was considering an allegation of fraud as a collateral challenge to a judgment of the Court. Justice Lang had similar judgments cited to him in support for the proposition that a “plaintiff is required to prove an evidential foundation sufficient to establish a prima facie or arguable case” in Motorworld Ltd v McGregor and observed that the requirement in those judgments to show “an evidential foundation amounting to a prima facie case of
fraud” was limited to:15
…strike out applications in circumstances where a plaintiff makes allegations of fraud in order to mount a collateral attack on a judgment of the Court.
13 Ng v Harkness Law Ltd [2014] NZHC 850 at [44].
14 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013]
1 NZLR 804 at [33].
15 Motorworld Ltd v McGregor HC Auckland CIV-2007-404-6558, 9 October 2008 at [31].
[53] I agree that such cases raise different issues and accordingly do not think the Supreme Court’s statement should be seen as authority for the proposition that a plaintiff alleging fraud must provide an evidential foundation for that claim. Counsel have an ethical obligation to have reasonably credible material before alleging fraud,16 and a statement of claim must be sufficiently particularised in that the facts pleaded are not consistent with innocence. Beyond that, I am satisfied, as was Lang J, that the normal principles of strike out apply.17
[54] Thus I also dismiss Freshmax’s alternative ground of appeal that the repleaded allegations should be struck out as inherently speculative and untenable and therefore as disclosing no reasonable counterclaim.
[55] I therefore dismiss Freshmax’s appeal.
[56] I make the following observations.
[57] The amount in dispute here is relatively small. These interlocutory proceedings will almost certainly have cost the parties that much, or more. The issue from the outset, it would appear, has been for Freshmax to satisfy Santa Rosa as to the correctness of the payments recorded in invoices by providing some explanation of the way those payments were calculated. Freshmax says that the scope of that exercise is onerous and would involve disclosing confidential information.
[58] In his judgment, Hansen J addressed those issues. In terms of that judgment, discovery should now focus on disclosure, as Hansen J put it, “sufficient to substantiate the basis on which prices and costs were calculated”. Given that Freshmax rendered invoices in specific amounts, and had to calculate them at some stage, that exercise should not be that difficult. Moreover, whether all invoices need to be so analysed in the first instance is in my view also questionable. Some form of agreed sampling should, I think, be sufficient to address Santa Rosa’s concerns. But
they will be matters for the District Court.
16 Savril Contractors Ltd v BNZ HC HAM CP 92-96/00 8 May 2002 per Baragwanath J at [32]
citing X v Y [2000] 2 NZLR 748 at 758.
17 Motorworld Ltd v McGregor, above n 10, at [23] and [41].
[59] Having said that, this dispute would appear ideally suited for mediation.
[60] The costs on this appeal will follow the event, and be payable by Freshmax to
Santa Rosa on a 2B basis for a half day appeal.
“Clifford J”
Solicitors:
Philip Joyce, Auckland for the appellant.
Bramwell Grossman Lawyers, Hastings for the respondent.
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