LHL Leasing Solutions Ltd v Pinto Ltd

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-5240 [2016] NZHC 1017

BETWEEN

LHL LEASING SOLUTIONS LIMITED

Plaintiff

AND

PINTO LIMITED Defendant

Hearing:	10 May 2016
Appearances:	G Denholm for plaintiff D Robinson for defendant
Judgment:	18 May 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

18.05.16 at 4  pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

LHL LEASING SOLUTIONS LIMITED v PINTO LIMITED [2016] NZHC 1017 [18 May 2016]

Background

[1]      This   proceeding   has   its   origins   in   events   which   took   place   from approximately 2005 onward. A juice processing distribution and sales company sold off its enterprise in that year.  I will call that party the original vendor.  The original vendor had entered into a “master lease agreement” with a company associated with a Mr Leaupepe.   That company I will call the “Leaupepe company”.   Under that agreement the Leaupepe company acquired, and then leased back to the original vendor, the juice processing equipment.  Under a subsequent novation arrangement the parties became the plaintiff, as owner/lessor of the equipment in the place of the Leaupepe company, and the defendant, in place of the original vendor as lessee of the equipment.

[2]      Under the master lease agreement the lessor was obliged to pay a rental of

$9,059.94  “including GST” per month.   There  is  no  dispute that  the defendant

became subject to that obligation through the deed of novation dated 9 August 2006.

[3]      Not  long  after  entering  into  the  deed  of  novation,  disputes  arose.  The defendant claimed that it had been paying too much to the plaintiff under the lease agreement.   In particular, rather than the figure of $9,059.94 per month being inclusive of GST, the plaintiff and its predecessor had added on GST.

[4]      There  were  also  disputes  over  what  the  parties  termed  the  “swap  out” agreement.  Mr Leaupepe, it is said, represented to the defendant that some of the plaintiff’s equipment was obsolete or unserviceable or otherwise unavailable and that that would be replaced from an alternative supplier (that is, from an entity associated with Mr Leaupepe).  As I understand the argument, the defendant says that because of the replacement of the equipment, its liability to the plaintiff under the master lease agreement would be reduced.  I understand, that is to say, the monthly rental would be reduced.

[5]      The defendant says that in reliance upon what Mr Leaupepe told it, which statement it claims the plaintiff authorised Mr Leaupepe to make, it entered into lease transactions for replacement equipment with third parties.

[6]      Mr Leaupepe or one of his companies was undoubtedly the service agent who was responsible for carrying out servicing of the plaintiff’s equipment while it was in the possession of the defendant.   But the plaintiff alleges Mr Leaupepe had no additional authority to give assurances or enter into arrangements of the kind comprised in the alleged swap out agreement.

[7]      The foregoing matters have relevance to a further area of dispute which…