Kingsbeer Transport Ltd v Martin-Brower New Zealand

[2022] NZHC 2931

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2499

[2022] NZHC 2931

BETWEEN

KINGSBEER TRANSPORT LIMITED

Plaintiff

AND

MARTIN-BROWER NEW ZEALAND

Defendant

Hearing:	On the papers
Counsel:	D M Fraundorfer, A G Needham and S A Stretton for plaintiff S S Cook and M J Cassaidy for defendant
Judgment:	9 November 2022
Reissued:	8 December 2022

SUPPLEMENTARY JUDGMENT OF JAGOSE J

This judgment was delivered by me on 9 November 2022 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Holland Beckett, Tauranga Buddle Findlay, Auckland

KINGSBEER TRANSPORT LTD v MARTIN-BROWER NEW ZEALAND [2022] NZHC 2931 [9 November 2022]

[1]    My 16 December 2021 judgment dismissed all claims and counterclaims between the plaintiff (“KTL”) and defendant (“MBNZ”), except for KTL’s sixth cause of action in quantum meruit, claiming reimbursement of its expenses in acquiring leased equipment, which I reserved “for determination after the parties’ advice of their negotiations in relation to KTL’s invoice 136 and its further expenses claim”.1 KTL’s quantum meruit claim also related to  invoices 134 and 135, which I held to fail.2      I directed the parties file advice “of the result of the negotiations (not of their course), and if my supplementary judgment remains required” by 31 January 2022.

Delay

[2]    On more recently hearing an appeal from my judgment, the Court of Appeal enquired of the Registry as to that advice, which brought counsel’s joint memorandum dated 28 January 2022 to my attention yesterday. Counsel advised “[t]he parties are unable to reach an agreed position in respect of these outstanding issues”, and sought my supplementary judgment. The memorandum is annotated on its cover, presumably by the Registry, “Pending outcome of appeal to COA by Kingsbeer”. That is incorrect, but may explain why the memorandum was not earlier referred to me.

[3]    I very much regret the delay. If I had considered its absence in the interim at all, it was only to confirm my supplementary judgment was not required. I reinforce, notwithstanding advocates’ possible superstitions, counsel are encouraged to enquire of the Registry as to progress of outstanding judgments.3

Supplementary judgment

[4]I now turn to the subject of my supplementary judgment.

[5]    Invoice 136 was for a sum of $14,161.79 issued in relation to services provided by KTL to MBNZ during June 2018, reduced to $13,412.26 by the plaintiff’s expert accountant, Paul Manning, for the purposes of the claim. He also identified further

1      Kingsbeer Transport Ltd v Martin-Brower New Zealand [2021] NZHC 3494 at [111]–[113].

2 At [102].

3      See    Courts    of    New    Zealand    “Inquiry    about    the    status   of   reserved     judgments”

< inquiry-process-and-recent-judgment-timeliness/#Inquiry>.

expenses for recovery from MBNZ in the amount of $33,686.47.4 The defendant’s expert accountant, Mike Lowe (to whom I misreferred as “Mike Rowe”, now with my apology), would have reduced those sums respectively to $5,610 and $4,311.5 In conference between the experts, Mr Manning’s Invoice 136 sum further was reduced to $10,142.

[6]    I had “some doubts if, given the parties’ effective agreement to negotiate reimbursement of short-term expenses, a claim in quantum meruit may stand here either”.6 That was to cross-reference my determination the parties’ agreement left ‘no room’ to revisit the balance of earlier invoices,7 referring back again to earlier explanation:8

If, in relation to the relevant subject matter, there is a valid and enforceable contract in force between the parties, then the contract and only the contract can speak: the rights and liabilities of the parties are regulated only by the contract: there is no room for quasi contractual rights.

I indicated any supplementary judgment would:9

… accept in principle MBNZ is not entitled to the benefit of KTL’s effort (including expenditure) on its behalf without a concomitant obligation to pay reasonable compensation for it. But MBNZ has paid KTL on invoice for its delivery services.

[7]    The parties’ contractual negotiation having failed, in circumstances in which the experts agree MBNZ was required to pay KTL something more for its services, there is room for ‘the contractual kind of quantum meruit’ in an award of “reasonable compensation to be paid for services where the level of remuneration has not been agreed”.10

[8]    I am not prepared to endorse KTL’s claim for further expenses, essentially as springing from its expert’s subsequent analysis (even if accepted in minor part by the

4 At [94].

5 At [95].

6 At [100].

7 At [99].

8      At [97], citing Seton Contracting Co Ltd v Attorney-General [1982] 2 NZLR 368 (HC) at 376– 377.

9 At [101].

10 At [96], citing Worldwide NZ LLC v NZ Venue and Event Management Ltd [2014] NZSC 108, [2015] 1 NZLR 1 at [27], n 24 (citing Harrison v Franich [2007] NZCA 538 at [32]; and Benedetti v Sawiris [2013] UKSC 50, [2013] 3 WLR 351] at [17]).

other expert), rather than any claim independently raised by KTL for services rendered.  Without   another  basis   for  calculation   of  payment  on  invoice  136,   I apprehend what is ‘reasonable’ to be somewhere between the positions contended by the experts. Picking a midpoint disregards the grounds for the experts’ positions. Nonetheless it has its merits in Solomonic efficiency, also in determining the parties’ respective liabilities. I calculate that midpoint to be $7,876.00.

Result

[9]On KTL’s sixth cause of action, I order MBNZ pay KTL $7,876.00.

Other issues

[10]   I leave it to counsel if my supplementary judgment should be referred to the Court of Appeal. I also reserved costs “until after determination of KTL’s sixth cause of action”. In my preliminary view, costs now may better be reserved for determination in accordance with the Court of Appeal’s decision. If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by MBNZ within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J