IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-000869
[2021] NZHC 554
BETWEEN HELLABY RESOURCE SERVICES LIMITED
First Plaintiff / Fourth Counterclaim Defendant
TBS REMCON LIMITED
Second Plaintiff / First Counterclaim Defendant
AND
BODY CORPORATE 197281
Defendant / Counterclaim Defendant
MAYNARD MARKS LIMITED
Second Counterclaim Defendant
HOBANZ PROJECT ASSIST LIMITED
Third Counterclaim Defendant
Hearing: 16 November 2020 Appearances:
J Q Wilson and R D H Massey for the Second Plaintiff
R J Hollyman QC, N G Lawrence and W J Revell for the Defendant
Judgment:
14 April 2021
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 14 April 2021 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
HELLABY RESOURCE SERVICES LTD v BODY CORPORATE 197281 [2021] NZHC 554 [14 April 2021]
Introduction [1]
Issues
TBS’s application for summary judgment[3]
The Body Corporate’s application for a stay of enforcement[4]
TBS’s application for stay of the Body Corporate’s counterclaim[5]
Factual background
Procedural background
TBS’s claim for the Unpaid Balance[23]
The Body Corporate’s counterclaim against TBS[28]
The Body Corporate’s counterclaim against Maynard Marks[35]The Body Corporate’s counterclaim against HOBANZ[39]
TBS’s application for summary judgment
Legal principles[41]
Submissions[45]
Does the Body Corporate have an arguable defence?[47]Residual discretion[60]
Discussion[68]
The Body Corporate’s application for stay of enforcement
Legal principles[86]
The Body Corporate’s submissions[92]
TBS’s submissions[95]Discussion[97]
TBS’s application for a stay of the Body Corporate’s counterclaim
Issues[116]
Is the arbitration agreement inoperative or incapable of being performed?[119]
Is the arbitration agreement enforceable under s 11 of the Arbitration Act?[144]
Result
Introduction
[1] TBS Remcon Ltd (TBS) applies for summary judgment against Body Corporate 197281 (the Body Corporate) for payment of a debt under a construction contract. Hellaby Resources Services Limited (Hellaby) formerly owned TBS. TBS maintains that that amount plus the costs of enforcement are recoverable as a statutory debt, against which no counterclaim can be raised under the Construction Contracts Act 2002 (the CCA). It also applies for a stay of the counterclaim the Body Corporate has raised, saying that it needs to be pursued separately, through arbitration.
[2] The Body Corporate opposes summary judgment as it says it has an arguable defence. It also contends that this is a case where the Court should exercise its residual discretion to decline summary judgment to avoid oppression or injustice to the Body Corporate. If the Court decides to order summary judgment, the Body Corporate seeks a stay of enforcement pending resolution of the Body Corporate’s counterclaim, as enforcement would result in a substantial miscarriage of justice.
Issues
TBS’s application for summary judgment
[3]The issues in relation to this application are:
(a)Has TBS satisfied the Court that the Body Corporate has no arguable defence to TBS’s claim?
(b)Even so, should the Court exercise its residual discretion not to order summary judgment?
The Body Corporate’s application for a stay of enforcement
[4] In relation to the Body Corporate’s application…
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- Case
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