King v Dressta Asia Pacific Ptd Ltd - [2012] NZHC 1781

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV-2011-416-184 [2012] NZHC 1781

BETWEEN PHILIP MAURICE KING Plaintiff

ANDDRESSTA ASIA PACIFIC PTE LTD Defendant

Hearing: 27 March 2012

Counsel: G Jones for Defendant
A Simperingham and C McIlroy for Plaintiff

Judgment: 20 July 2012

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Summary Judgment)

This judgment was delivered by me on 20 July 2012 at 12 pm pursuant to
Rule 11.5 of the High Court Rules Registrar/Deputy Registrar Date ..........................

Solicitors:
Woodward Chrisp, P O Box 347, Gisborne
Lane Neave, P O Box 13149, Christchurch

KING V DRESSTA ASIA PACIFIC PTE LTD HC GIS CIV-2011-416-184 [20 July 2012]

Introduction

[1] The defendant, Dressta Asia Pacific Pte Ltd, applies for summary judgment dismissing the claim for damages of NZ$162,902.17 and US$92,500 that the plaintiff, Mr Philip King, has brought against it. The application is made in reliance on High Court Rule 12.2(2) which states:

The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[2] The application is opposed. Mr King contends that he has a good arguable case on the two causes of action set out in his statement of claim filed on 13
September 2011 and that he should be permitted to have them determined by trial.

[3] It is not in dispute that the onus is on Dressta to demonstrate that neither of Mr King’s causes of action can succeed. Dressta contends that it has a complete and incontrovertible defence to both.

[4] Mr King himself initially sought summary judgment on his claim, but he has withdrawn his application. Confronted with Dressta’s opposition, he is content to accept that there is a dispute on the facts that rules out summary judgment on his application.

Background

[5] Mr King purchased a new TD-25M bulldozer from Dressta in March 2005. The parties agreed verbally on a purchase price of US$415,000 including costs, to be paid by way of a deposit of US$50,000 and the balance upon receipt of a pro forma invoice. The bulldozer was delivered in January 2006.

[6] Following delivery Mr King experienced problems with the bulldozer. The problems have continued, and Mr King says the bulldozer has proved unsuitable for the heavy clearance and forestry work he intended to use it for. Mr King now seeks to pursue relief by invoking the statutory warranty in s 16 of the Sale of Goods Act and in reliance on the pre-contractual statement that he maintains Dressta’s salesman

made as to suitability for his intended purpose. Accordingly, Mr King’s statement of

claim sets out two causes of action:

(a) the first alleges breach of a term of the oral contract of sale as to fitness for purpose and merchantable quality, implied pursuant to s 16; and

(b)the second alleges that he was induced to enter into the contract by Dressta’s misrepresenting the suitability of the bulldozer for the purpose for which he intended…

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.

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Details

Case: [2012] NZHC 1781
Decision Date: 20 July 2012

CaseChat Overview and Summary

In King v Dressta Asia Pacific Pte Ltd, the plaintiff, Mr Philip King, sought damages from the defendant, Dressta Asia Pacific Pte Ltd, for the sale of a defective bulldozer. The defendant applied for summary judgment under High Court Rule 12.2(2), contending that Mr King's claims could not succeed as the standard warranty signed by Mr King upon delivery contained liability exclusions that precluded his claims. The plaintiff opposed the application, arguing that the standard warranty did not constitute a binding variation of the original verbal contract and that the defendant might be disentitled from relying on the liability exclusions due to misrepresentation.

The court found that the defendant had not demonstrated that Mr King's claims were hopeless. The defendant's argument that Mr King's claims could not succeed because the standard warranty constituted a binding variation of the original verbal contract was rejected. The court found that there was an arguable case that the standard warranty did not offer fresh consideration for Mr King's agreement to the liability exclusions, and that the standard warranty might not constitute a binding variation to the parties' verbal agreement. The court also found that there was a live issue as to whether the defendant's conduct in March 2005 and January 2006 amounted to misrepresentation, which might disentitle the defendant from relying on the liability exclusions.

The court concluded that the application for summary judgment must fail as Mr King had an arguable case which would benefit from a full hearing in the context of a trial. The defendant's application for summary judgment was dismissed accordingly, and costs were reserved.

Orders