Geotech Limited v Mount Grey Downs Limited - [2019] NZHC 1395

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000107

[2019] NZHC 1395

BETWEEN
GEOTECH LIMITED

Applicant

AND

MOUNT GREY DOWNS LIMITED

Respondent

Hearing: 11 June 2019

Appearances:

O Peers and A Cao for Applicant D J Ballantyne for Respondent

Judgment:

18 June 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

(on application to set aside statutory demand)

[1] The applicant, Geotech Ltd (Geotech), has mining and mineral interests. The respondent, Mount Grey Downs Ltd (Mt Grey), provides a range of contracting services, including site works, cartage and vehicle maintenance. Geotech was using Mt Grey’s services relevantly from mid-2017.

[2] On 21 February 2019 Mt Grey served on Geotech a demand under s 289 of the Companies Act requiring payment of $241,167.80 said to be owing as at that date “for services provided as set out in the letter and invoices accompanying this statutory demand.”

[3] Service of this demand followed service of an earlier demand by Mt Grey on Geotech on 23 July 2018. That demand was the subject of an application to set aside under s 290, which was decided by a judgment of this Court dated 26 November 2018.

GEOTECH LIMITED v MOUNT GREY DOWNS LIMITED [2019] NZHC 1395 [18 June 2018]

The demand was not set aside. Payment of the sum found to be in dispute was duly made. The Court found Geotech had an arguable cross-claim for $146,666.21.

[4] Mt Grey sought further payments from Geotech in the period of two months prior to service of the demands now in issue. On 17 December 2018 Mt Grey sought payment of $413,002.54 which included a claim for payment of invoices which had been found to be the subject of a counterclaim in the judgment of this Court referred to. The balance of the sum claimed in the first demand had been paid by that time.

[5] After correspondence between solicitors for Mt Grey and Geotech a further demand was served on 25 January 2019, this time for $374,265.78. The difference in the sum claimed was as a result in a reduction of the sum sought for interest, but the sum which had been found in the judgment of the Court to be the subject of a counterclaim was still included in this demand.

[6] After further correspondence between solicitors this demand was withdrawn but a few days later the current demand was issued. This time the sum which had already been found to be the subject of a counterclaim ($146,666.21) had been removed from the sum sought.

[7] Service of this demand under cover of a letter from Mt Grey’s solicitors was accompanied by time records and work sheets from Mt Grey said to relate to mechanical invoices for which charges had not been made at the time the first demand was issued on 23 July 2018. Most of the work to which the claim related had been invoiced on 31 July 2018 but related to work done on Geotech…

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 Geotech Limited v Mount Grey Downs Limited

Details

AGLC: Geotech Limited v Mount Grey Downs Limited [2019] NZHC 1395
Case: [2019] NZHC 1395
Decision Date: 18 June 2018

CaseChat Overview and Summary

Geotech Limited, an applicant with mining and mineral interests, sought to set aside a statutory demand from Mount Grey Downs Limited, a respondent that provides contracting services including site works, cartage, and vehicle maintenance. Mount Grey Downs Limited had previously served Geotech Limited with a statutory demand under s 289 of the Companies Act, requiring payment of $241,167.80 for services provided. The applicants argued that there was a genuine and substantial dispute over whether the sum referred to in the statutory demand was owing or due, and that the demand was an abuse of the statutory demand process. Mount Grey Downs Limited opposed the application. The Court had to decide whether there was a genuine and substantial dispute over whether the claimed debt was due and owing. The Court found that Geotech Limited had not established an arguable defence to the claim, nor that the demand should be set aside on other grounds. The application to set aside the statutory demand was dismissed. The Court directed Geotech Limited to pay the amount claimed in the demand, plus interest calculated at 10 per cent on each invoiced amount comprised in the debt, on a daily basis from the date to which interest is calculated in the demand, to the date of payment. In default, Mount Grey Downs Limited may apply to put Geotech Limited into liquidation.

Orders