Jaques v Main - [2015] NZHC 2123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-619 [2015] NZHC 2123

BETWEEN
DAVID ARTHUR JAQUES

Plaintiff

AND

VICTOR RAYMOND MAIN First Defendant

THOMAS CLARENCE HODGSON Second Defendant

Hearing: 24 August 2015

Appearances:

D A Jaques, plaintiff in person
B L Gray for defendants

Judgment:

3 September 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
03.09.15 at 10.30 a.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JAQUES v MAIN & ANOR [2015] NZHC 2123 [3 September 2015]

[1] The plaintiff has sued the defendants for loss for damages arising out of an agreement entered into between the parties on 24 September 2011, between Nouveau-Zenith Limited (“NZL”) on the one hand and Mr Jaques on the other. Pursuant to the agreement Mr Jaques was to provide services for the company as an independent contractor. He was to be the Chief Executive officer and was to be paid at the rate of $204,000 per annum plus GST. He was entitled to a share option. The agreement required that in regard to the first payment he was to receive that he should provide an initial invoice “that shall be deemed to be repeating unless
changed”.1 The defendants were shareholders in and directors of NZL.

[2] Mr Jaques claims that he did provide services for a period of some months in

2011 to the company. But then the plaintiff and the defendants subsequently fell out. Eventually the parties decided that they would attempt to settle their differences and on 24 September they entered into an agreement which they had drawn up themselves, the provisions of which I will need to set out in their entirety:

Dave has a three year management contract with Nouveau-Zenith Limited. Dave has a claim to a share purchase option with Nouveau-Zenith Limited.
Victor and Tom dispute Dave has the share purchase option. In consideration of Dave waiving his right to these two terms, in full and final settlement, Victor and Tom both jointly and severally agree.

1. To keep the $30,000 paid;
2. To accrue $4,000 plus GST per week from 10.04.11 until the full $30,000 is paid, and;
3. In any event to have paid all money owing under this agreement by 10.4.14;
4. All money owing under ##2 must be paid when all money under #1 is paid.

[3] The plaintiff filed a statement of claim claiming damages in the sums of
$740,600, $239,200 and “damages in the amount of $4,600 … accruing on a four weekly basis from 10 April 2015 until all monies paid in full”.

1 Paragraph 6.2.

[4] Counsel for the defendants, Mr Gray said the current amount of the claim is

$986,000 approximately.

[5] The defendant’s principal dispute with the plaintiff is that they claim he misrepresented the position when he entered into the agreement with their company, NZL. They say that he represented that there was no reason why he could not obtain a lawyers practicing certificate…

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 Jaques v Main

Details

AGLC: Jaques v Main [2015] NZHC 2123
Case: [2015] NZHC 2123
Decision Date: 3 September 2015

CaseChat Overview and Summary

The case of Jaques v Main involved a claim by David Arthur Jaques against Victor Raymond Main and Thomas Clarence Hodgson for loss and damages arising out of an agreement entered into on 24 September 2011. Under the agreement, Jaques was to provide services as an independent contractor for Nouveau-Zenith Limited (NZL), of which Main and Hodgson were shareholders and directors. The agreement stipulated that Jaques was to be the Chief Executive Officer and was to be paid $204,000 per annum plus GST, with a share option entitlement. However, the relationship between the parties soured, leading to a settlement agreement on the same day, whereby Main and Hodgson agreed to pay Jaques $30,000, plus an additional $4,000 plus GST per week from 10 April 2011 until the full $30,000 was paid, with all payments to be completed by 10 April 2014.

The legal issues before the court included whether Jaques had misrepresented his qualifications and financial status when entering the initial agreement with NZL, whether the settlement agreement was valid, and whether the defendants had arguable defences to the plaintiff's claim. The court found that while there were misrepresentations made by Jaques regarding his legal qualifications and financial status, these did not impact the validity of the settlement agreement. The court also determined that the defendants had not provided a focused analysis of their defences and that their claims of duress were unsubstantiated. Furthermore, the court examined the enforceability of the settlement agreement, particularly the clause stipulating repayment of the $30,000 at the rate of $4,000 per week, which resulted in a significant increase in the amount owed over four years, raising questions of whether the contract imposed a penalty on the defendants.

The court concluded that the summary judgment application could not succeed as the settlement agreement appeared to impose a penalty on the defendants, which would render the contract unenforceable. Costs were reserved, and the parties were directed to confer and file a joint or separate memorandum within 21 days to progress the proceedings.

Orders