LSD 2017 Limited v Landscaping Direct Limited
[2022] NZCA 657
•21 December 2022 at 2:00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA40/2022 [2022] NZCA 657 |
| BETWEEN | LSD 2017 LIMITED Appellant |
| AND | LANDSCAPING DIRECT LIMITED (in liquidation) Respondent |
| Hearing: | 15 August 2022 |
Court: | Katz, Wylie and Palmer JJ |
Counsel: | J A Browne and J P Cartwright for Appellant |
Judgment: | 21 December 2022 at 2:00 pm |
JUDGMENT OF THE COURT
ALeave is granted to amend the pleadings to reflect a cause of action that LSD 2017 Limited had overpaid the annual option fee.
BLeave is declined to amend the pleadings to add a new cause of action regarding contractual mistake.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Summary
LSD 2017 Ltd (LSD) sued Landscaping Direct Ltd (Landscaping) for misrepresentation inducing entry into contracts for the supply of quarried scoria and other building materials (the Supply Agreement) and for purchase of certain assets (the Purchase Agreement). The High Court dismissed the claim, which was heard by way of formal proof.[1] On appeal, we find that there was a misrepresentation but the entire agreement clauses in the contracts mean LSD was not induced to enter into the contracts, and it was not reasonable for LSD to rely upon the misrepresentation. We grant leave to LSD to amend the pleadings to argue that it overpaid the annual option fee, but we dismiss the appeal on that issue as well. We decline leave to amend the pleadings to add a new cause of action for contractual mistake. If LSD wants to argue contractual mistake, it will need to bring a new proceeding. The appeal is dismissed.
What happened?
The Royalty Agreement
[1]LSD 2017 Ltd v Landscaping Direct Ltd [2021] NZHC 3386 (Powell J).
There are three active scoria quarries in New Zealand. The Semenoff Group of companies (the Semenoff Group) operate one in Northland and have a range of other business interests including transport. In 2017, Landscaping also operated a scoria quarry in Taupō (the Quarry) and transported material from the Quarry to depots at Silverdale and Takanini in Auckland. Landscaping was facing financial difficulties.
In July 2017, Mr Stan Semenoff, Mr Alex Semenoff and Mr Lloyd Dixon‑Parrant, of the Semenoff Group, met with Mr Shaun Fredricksen and Mr Rob Yeoman of Landscaping. When they started negotiating, Landscaping provided them with a royalty agreement (the Royalty Agreement) dated 7 June 2011 which it had as the exclusive contractor with the owners of the Quarry as well as the owners of the Māori land under the Quarry, Te Rangatira E Trust and the Māori Trustee. Landscaping paid royalties per tonne of material sold, subject to review during the term of the Royalty Agreement and on renewal. The term of the contract was five years from 20 May 2011 with two rights of renewal for five years each and final termination in May 2026. Landscaping’s obligations were guaranteed by Mr Fredricksen. Clause 7 of the Royalty Agreement provided explicitly that Landscaping’s interest was not to be construed as a lease and was not capable of being assigned.
The evidence is that, in several meetings with the Semenoff Group, Landscaping said that the final termination date of the Royalty Agreement had been extended by 15 years until 2041. Landscaping’s interest in the quarry was valued by Telfer Young at $3.5 million. That was on the basis it expired in 2026 with rights of renewal, but the valuation accounted for the advice Telfer Young had received that a further 15‑year extension had been approved.
The contracts
There was negotiation between the Semenoff Group and Landscaping. On 28 August 2017, Mr Yeoman provided Mr Alex Semenoff and Mr Dixon‑Parrant with three general proposals for how the parties could work together. On 15 September 2017, Mr Dixon-Parrant, as a Semenoff Group business advisor, prepared a “Strategic Alliance” proposal (Strategic Alliance Proposal) along the lines of the third option. On 19 and 20 September 2017 the Strategic Alliance Proposal was signed by Mr Fredricksen, Mr Stan Semenoff and Mr Alex Semenoff. Its essential elements were:
(a)The Semenoff Group would acquire all the assets listed in the proposal, the value of which had been discussed in prior emails between the parties as totalling around $1.66 million.
(b)The Semenoff Group would take over the “leases” at the Takanini and Silverdale yards.
(c)Landscaping would grant to the Semenoff Group a call option to acquire Landscaping’s “leasehold interest (expiring 2026 with renewal rights)” in the Quarry. This was on the basis that Landscaping would be granted the right to mine the Quarry, the Semenoff Group would pay Landscaping $750,000 on the sixth anniversary and would pay $5 per tonne of scoria extracted, over a five-year term based on extraction of 100,000 tonnes per annum.
(d)Landscaping would agree to sell the scoria from the Quarry at the gate to the Semenoff Group for $17.25 per tonne, and for $40 per tonne if purchased from the Auckland stockpile.
The effect of this proposed agreement was that Landscaping would sell scoria exclusively to the Semenoff Group. On 26 September 2017, Mr Yeoman for Landscaping advised the Semenoff Group in an email that the further 15‑year extension had been agreed between Landscaping and the owners of the land and Quarry “but the paperwork was never completed”. He told them the Chairman of the Te Rangatira E Trust and its consultant agreed that was an oversight and they were currently getting it documented into a lease extension. Mr Yeoman engaged with an adviser to Te Rangatira E Trust accordingly, though the Semenoff Group was not privy to that.
On 16 October 2017, the Semenoff Group incorporated LSD. Kensington Swan, the Semenoff Group’s solicitors, prepared two contracts between Landscaping and LSD to implement the agreement: the Purchase Agreement in relation to the assets; and the Supply Agreement with an option to acquire the interest in the Quarry. There were some differences between those contracts and the Strategic Alliance Proposal. In particular:
(a)While LSD would continue to make royalty payments totalling $500,000 per year for the annual option fee, based on a rate of $5 per tonne of scoria, LSD was to advise Landscaping annually whether it wished to continue with the Supply Agreement.
(b)The first half of the annual option fee payable in the first year of the Supply Agreement was covered by LSD clearing a trade debt that Landscaping owed to one of its transport providers, in the amount of $250,000.
In these contracts, Landscaping’s interest in the Quarry was described as a leasehold, even though the Royalty Agreement explicitly provided that it was not a lease and could not be assigned. There was no reference in either contract to the 15‑year extension of the Royalty Agreement. There were “entire agreement” clauses in both contracts, to the effect that each contract set out the only conduct relied on by the parties.
On 27 October 2017, the parties signed both agreements and began carrying out their respective obligations. On 23 July 2018, LSD paid $250,000 of the annual option fee direct to the specified transport provider in satisfaction of Landscaping’s debt with them. LSD started paying the annual option fee in monthly instalments depending on the amount of scoria that had been quarried.
The dispute
Sometime in late 2018, Mr Stan Semenoff was told by one of the owners of the land under the Quarry that the beneficial owners of the Quarry had not agreed to an extension of the Royalty Agreement with Landscaping. She provided him with minutes of the meeting to confirm that was the case.
In January 2019, LSD finally followed up with Landscaping about the extension. Mr Alex Semenoff’s evidence is that, during a visit to the Quarry on 16 March 2019, Mr Fredricksen said the extension was agreed. Mr Dixon-Parrant does not corroborate that, saying the purpose of the visit was to ascertain whether there was any way to make the investment work for the Semenoff Group in the absence of an extension.
In July 2019, in response to further inquiries by LSD, Mr Fredricksen said the landowners had agreed to look at formalisation of the extension closer to 2026. A week later, Landscaping gave notice that LSD was in breach of its obligations under the Supply Agreement to pay the annual operating fee, claiming arrears of $74,772.15.
LSD sued Landscaping under the Contract and Commercial Law Act 2017 (CCLA) and the Fair Trading Act 1986 (FTA), for misrepresenting that Landscaping’s rights to mine the Quarry had been extended. Landscaping filed a statement of defence admitting it had represented there was an extension but pleading that LSD was aware the extension was not documented and that otherwise the representation was truthful. Landscaping then went into voluntary liquidation so the proceedings were heard by way of formal proof.
On 10 December 2021, the High Court held there was no actionable misrepresentation, there was insufficient evidence that the contracts were induced by any representation, and it was not reasonable for LSD to rely on any representation.[2] The Judge dismissed LSD’s claims.
Issue 1: Was there an actionable misrepresentation?
[2]At [49], [59] and [60].
The High Court held:
(a)There was initially an unambiguous representation that Landscaping had obtained a 15-year extension to the Royalty Agreement, which was not correct and could have had a tendency to mislead or deceive.[3]
(b)However, the misrepresentations were not made to LSD, which had not been incorporated at the time, and the parties involved had not entered into a pre-incorporation contract.[4] The Judge also rejected the argument that there had been a continuing misrepresentation.[5]
(c)From 26 September 2017, and by the time the contracts were signed, the Semenoff Group knew the extension had not been put in writing and further steps were required.[6] It was accordingly difficult to say that an undocumented agreement could amount to an actionable misrepresentation or was misleading or deceptive, because it was a statement of future intent.[7] In any event, no misrepresentation had been made to LSD.[8]
[3]At [44]–[45].
[4]At [46]–[47]; and see Companies Act 1993, ss 182–185.
[5]At [47], citing Do Yay Ltd (in liq) v Wei [2020] NZHC 759, [2021] 2 NZLR 351 at [51]–[57] and Body Corporate 90315 v Redican Allwood Ltd [2014] NZHC 1212 at [30]–[45].
[6]At [48].
[7]At [49].
[8]At [50].
Mr Browne, for LSD, submits that a misrepresentation can be made indirectly, to a third party with intent that it be passed on to a claimant to be acted on by them.
We agree there was a misrepresentation here. Section 35(1) of the CCLA provides that a misrepresentation must be made to “a party to a contract (A) … by or on behalf of another party to that contract (B)”. As the authors of Law of Contract in New Zealand state:[9]
A representation made to a person knowing that he or she is the agent of some other person, even if that other person is undisclosed, is effective as a representation made to the principal — provided it is relayed to the principal and induces him or her.[10] The same is true of a representation made to a person intending that it be passed on to a third person, or a representation which the maker knows has been passed on to such a third person before the contract is entered into.[11]
[9]Stephen Todd and Matthew Barber Law of Contract in New Zealand (7th ed, LexisNexis, Wellington, 2022) at 379. And see Michael Jones (ed) Clerk & Lindsell on Torts (23rd ed, Sweet & Maxwell, London, 2020) at [17-32].
[10]Ware v Johnson [1984] 2 NZLR 518 (HC); and Do Yay Ltd v Wei, above n 5, at [52]–[53] (no representation made to a company where the representee was not acting as its agent).
[11]Rondova v When Routine Bites Hard Ltd [2013] NZHC 267.
Richardson J said in this Court in Coles v Orewa Wool Shop Ltd:[12]
Surely a vendor must envisage that any material statements he makes to a person contracting as trustee for a company to be formed which are calculated to influence the purchase, will be passed on to the company when it is formed. If it transpires, as was the case here, that the trustee becomes the governing director of the company, it must be envisaged that the information will be in possession of the company.
[12]Coles v Orewa Wool Shop Ltd CA115/77, 27 July 1979 at 7 per Richardson J.
In the High Court, the Judge relied on High Court judgments in Do Yay Ltd (in liq) v Wei and Body Corporate 90315 v Redican Allwood Ltd.[13] But neither judgment cited the above principles. In both of those cases, the misrepresentations were made to an individual who was also the contracting party, but were held not to have been made to a subsequently incorporated company. The situation here is quite different. LSD was the contracting party, acting on the basis of information passed to it by the Semenoff Group.
[13]Do Yay Ltd v Wei, above n 5; and Body Corporate 90315 v Redican Allwood Ltd, above n 5.
Landscaping was negotiating with Mr Stan Semenoff and Mr Alex Semenoff, the Director and Operations Manager of the Semenoff Group. It can have been no surprise that they incorporated a new company to carry out their side of the arrangement. They became the Directors of LSD. Accordingly, the knowledge possessed by the Semenoff Group was passed directly to, and possessed by, LSD who was the contracting party. Landscaping knew that. Landscaping’s representation about the extension was effective as a representation to LSD.
We also agree with Mr Browne’s submission that the representation here was a continuing misrepresentation that there was an extension. The email of 26 September 2017 did not change that. It stated:
As per our phone call earlier today, we have hit a small hurdle which we are currently trying to resolve. When the original lease was signed by Rangatire [sic] E Trust, the negotiations allowed for a further 15 years at the expiry of the current lease, which all parties have agreed to, but the paperwork was never completed.
I have spoken with the Trust chairman, and their consultant, and both agree that this should have been completed some time ago, but was an oversight. So on that basis, we are currently getting the second term of 15 years documented into a lease extension. We expect to have this resolved very quickly and will attend to this urgently.
So the email repeated the misrepresentation that “all parties have agreed to” the extension. It added that the paperwork to document the extension was being worked on and was expected to be resolved very quickly — which was a statement of future intent. But that did not make the representation that the extension had been agreed a statement of future intent. In short, we agree that Landscaping made an actionable misrepresentation of fact that an extension of the Royalty Agreement had been agreed.
Issue 2: Did the misrepresentation induce entry into the contracts?
The Judge held that no contemporaneous evidence suggested the 15-year extension was critical.[14] Neither the third option canvassed in negotiations nor the Strategic Alliance Proposal referred to an extension.[15] Neither did the contracts, which both included entire agreement clauses.[16] The Judge found it was difficult to place too much weight on the evidence of Mr Alex Semenoff and Mr Dixon-Parrant that they would not have entered the contracts in the absence of the extension, given that the Supply Agreement envisaged LSD reserved the right to walk away from the option.[17] And there was no follow up to the 26 September 2017 email until January 2019.[18] Accordingly, the Judge held there was insufficient evidence to conclude that the contracts had been induced by the representation that the extension had been agreed.[19]
[14]LSD 2017 Ltd v Landscaping Direct Ltd, above n 1, at [54].
[15]At [55].
[16]At [56].
[17]At [57].
[18]At [58].
[19]At [59].
The evidence of Mr Alex Semenoff and Mr Dixon-Parrant is that the extension was critical for pricing. Mr Browne relies on this as logical, credible and plausible. He submits there were two explicit references, in the email canvassing agreement options, to 25 years remaining on the Royalty Agreement and that the Strategic Alliance Proposal could be read as envisaging the extension.
The evidence of Mr Alex Semenoff, given in an affidavit dated 27 May 2021, was:
All our calculations about what to pay for the Quarry and how we could make it financially viable were based on the fact there was an extension. Based on our calculations, the Quarry would not generate a substantial return on our investment over the first 6 years while we were paying the Annual Option Fee. However, once we paid all the Annual Option Fees and exercised the call option, we would begin to see much larger returns. For that reason, it was important that there were 25 years remaining on the lease so that there was time to generate profits that would make purchasing the Quarry worthwhile from a business perspective.
The more detailed financial evidence provided by Mr Dixon-Parrant in an affidavit of 27 May 2021 corroborated that. He said their valuation was based on extraction for at least 25 years and “would not have made any commercial sense if the contractual term was only six years”. Further, the Telfer Young valuation of the Quarry was based on a time period of 10 years, which was only possible if the further 15-year extension had been agreed.
We share the Judge’s scepticism about subsequent evidence concerning what the parties intended at the time. But the evidence here is that this deal only stacked up commercially for LSD if it was to last for more than six years. Given that commercial context, we accept that it is logical that what was represented to be an extension to the Royalty Agreement could be regarded as material to entering the contracts. The evidence that it induced entry was not contradicted. That constitutes sufficient evidence to hold, on the balance of probabilities, that the misrepresentation induced entry into the contracts.
But the entire agreement clauses in each of the two contracts are explicit that the contract “contains the entire agreement between the parties with respect to its subject matter” and “sets out the only conduct relied on by the parties”. Clause 8.1 of the Purchase Agreement provides explicitly that all earlier representations are superseded as well.
Section 50 of the CCLA provides that a court is not prevented by an entire agreement clause from inquiring into and determining whether a representation was relied upon, unless the court considers it is “fair and reasonable” that the provision should be conclusive. In making that determination, the court will have regard to the subject matter and value of the transaction, the respective bargaining strengths of the parties and whether they were represented or had legal advice. Similarly, s 5D of the FTA provides that parties can contract out of the FTA by an entire agreement clause if the agreement is in writing, the parties are in trade and it is “fair and reasonable” that they are bound by the provision. Mr Browne submits it would not be fair and reasonable for the parties to be bound by an entire agreement clause here.
The parties were in trade. LSD was advised by Kensington Swan, which drafted both entire agreement clauses. If anything, the bargaining strength favoured LSD, given Landscaping’s financial difficulties. We do not consider there is unfairness or unreasonableness in enforcing the entire agreement clause in either contract. We consider the entire agreement clauses prevent LSD from succeeding in its argument that the misrepresentation induced it to enter the contracts.
Issue 3: Was it reasonable to rely on the misrepresentation?
The Judge held that, even if the representation had induced entry into the contracts, it was clearly not reasonable for the Semenoff Group/LSD to rely upon the representation, once it became clear the extension to the Royalty Agreement had not been agreed in writing.[20] The Judge said, in particular:[21]
(a) The equivocal nature of the representation and the knowledge possessed by the Semenoff Group/LSD about the Royalty Agreement meant that once LSD was aware that no extension was documented in writing it was by no means clear that an extension would result. After 26 September 2017, both the Semenoff Group and LSD knew that not only did the Royalty Agreement involve the operation of a quarry on Māori land, it also involved two distinct groups of Māori owners with both having to agree in writing if the Royalty Agreement was to be extended beyond 2026.
(b) Likewise, any reliance upon the representation also cannot be seen in isolation from clause 7 of the Royalty Agreement which made it clear that Landscaping Direct’s interests could not be assigned to any third party.
(c) In any event, the agreement drafted by Kensington Swan made it clear that the Semenoff Group/LSD was not relying upon representations outside the agreements themselves, and the range of specific warranties provided by Landscaping Direct to LSD.
[20]LSD 2017 Ltd v Landscaping Direct Ltd, above n 1, at [60].
[21]At [60] (footnotes omitted).
Mr Browne accepts the interests could not be assigned but submits that is only one factor. He points out that, as far as the Semenoff Group knew, an extension had been agreed.
We agree with the Judge that, if the representation was relied upon, that would not have been reasonable. First, while there was a representation that an extension had been agreed, it was clear that there had been no documentation of an extension with the two groups of Māori owners of the Quarry. That carries inherent uncertainty.
Second, and most importantly, it was clear from the Royalties Agreement, which the Semenoff Group had from the outset of the negotiations, that Landscaping’s interest (which was not a lease) could not be assigned. Mr Browne acknowledges that is a significant factor relevant to the reasonableness of reliance. We think that understates the position. It is not reasonable to rely on an extension to the Royalty Agreement as inducing entry into the contracts, when the whole arrangement, including the value of the extension, is predicated on an assignment which cannot lawfully happen.
Third, it is not reasonable for the party whose lawyers drafted the Supply Agreement, to rely on a representation when that was precluded by an entire agreement clause in that agreement.
Issue 4: Was the annual option fee overpaid?
One of the grounds of appeal filed by the previous solicitors for LSD is that the High Court did not address the third cause of action that LSD had overpaid the annual option fee. There was no third cause of action and no application to amend the pleadings in the High Court. Nevertheless, LSD argued the point in the High Court and the Court addressed it, albeit in a footnote.[22] Mr Browne submits that no other party is taking steps in the appeal so there is no prejudice, and it is in the interests of justice that the argument be considered. He submits this Court, which has the rights and powers of the High Court under r 48(2) of the Court of Appeal (Civil) Rules 2005, should exercise the discretion under r 1.9(1) of the High Court Rules 2016 to amend defects and errors in the pleadings.
[22]At [33], n 15.
The High Court has previously held, in Heinz Wattie’s Ltd v Goodman Fielder Consumer Foods Pty Ltd, that it could amend pleadings under r 1.9 on appeal.[23] Because the point was the subject of evidence and submissions in the High Court, was dealt with by the Judge, and creates no prejudice to others, we consider it is in the interests of justice to grant leave to amend the pleadings and address the issue.
[23]Heinz Wattie’s Ltd v Goodman Fielder Consumer Foods Pty Ltd HC Auckland CIV‑ 2007-‑404-‑6946, 10 December 2008, at [42]–[46].
The Judge dealt with the argument in a footnote:[24]
There was some suggestion in the submissions made on behalf of LSD at the hearing that the annual operating fee was not payable in the first year. On the face of the documents, that cannot be correct. There is nothing in the supply agreement that indicates the annual operating fee was not payable in the first year other than half was credited as a result of the payment of the Regal debt. In addition, the call option could have been exercised in the 12 months before the sixth anniversary of the agreement (cl 2.17) which reflects the fact that five years of annual operating fee would have been paid by that point. That would not have been the case had no annual operating fee been required to be paid in the first year of the supply agreement.
[24]LSD 2017 Ltd v Landscaping Direct Ltd, above n 1, at [33], n 15.
Clause 2.2 required LSD to advise Landscaping, at least a month prior to each anniversary, whether it wished to continue the Supply Agreement for another year. Clause 2.11 provided that, subject to that being confirmed, LSD would pay the fee for the following year, progressively as scoria is uplifted, with a lump sum at the end to make up any outstanding balance to $500,000.
Mr Browne submits that cls 2.2 and 2.11 of the Supply Agreement mean that LSD has to confirm an extension in the month before each anniversary and the fee is only payable from the anniversary for the following year. The confirmation of continuation of the Supply Agreement can only take place at the end of the first year so the fee is only payable from the first anniversary. So, he submits, the fee was overpaid by $140,724.85.
The issue is what the parties agreed would happen in the first year of the Supply Agreement. We agree with the Judge that there is nothing to indicate the fee was not payable in the first year. Indeed, cl 2.15 states the opposite:[25]
[LSD] has agreed to assume the liability for the debt of $250,000 owed by [Landscaping] to [a third party]. In consideration of [LSD] assuming that debt the Annual Option Fee payable in the first year shall be reduced from $500,000 to $250,000 so that the assumption of the [third party] debt shall be deemed to satisfy the full commitment and payment for the Annual Option Fee in respect of 50,000 tonnes of Scoria from the Taupo Quarry.
[25]Emphasis added.
The words in bold make clear that the option fee was payable in the first year. And standing back from the words, it would make no sense for no fee to be payable in the first year. Under cl 2.2, the commitment to pay the fee was in consideration of LSD having exclusivity for the next year and the ongoing call option. That was as true for the first year as it was for the other years. This ground of appeal is dismissed.
Issue 5: Should the pleadings be amended to argue contractual mistake?
As an alternative argument, Mr Browne submits the misrepresentation was a contractual mistake. This was not pleaded in the High Court either and Mr Browne again asks this Court to amend the pleadings on the basis there is no prejudice. If granted, he submits the cause of action should be remitted to the High Court for consideration, because the evidence filed to date has not been focussed on mistake and relief is discretionary. He submits that unusual factors are present here because the statement of claim was filed by the law firm that was involved in drafting the Supply and Purchase Agreements. The firm continued to act after receiving the statement of defence which denied that the solicitors had omitted to consider cl 7 of the Royalty Agreement. Mr Browne’s concern is that if leave is not given, his client might lose the ability to make a claim on the basis of mistake, though he is not ruling that out.
The mistake argument was not made in, or considered by, the High Court. This Court has previously expressed concern with arguments being raised for the first time on appeal, particularly where they were not pleaded.[26] And it has declined to amend pleadings in order to introduce a fresh cause of action which essentially sets up a new case from that which was pleaded earlier, in order to get around limitation issues.[27] Here, LSD may be able to pursue a contractual mistake claim by filing a separate proceeding. If that is not possible, that might give rise to further legal options. The difficulties for LSD in pursuing that course is not a compelling reason for this Court to entertain a new cause of action that LSD has not pleaded, and which has not been the subject of evidence or submissions to, or considered by, the High Court.
Result
[26]Sportzone Motorcycles (in liq) v Commerce Commission [2015] NZCA 78, [2015] 3 NZLR 191 at [106].
[27]As discussed in Chilcott v Goss [1995] 1 NZLR 263 (CA) at 273, citing Elders Pastoral Ltd v Pemberton (1990) 2 PRNZ 188 (HC) at 190 and Smith v Wilkins and Davies Construction Co Ltd [1958] NZLR 958 (SC) at 961.
Leave is granted to amend the pleadings to reflect a cause of action that LSD 2017 Limited had overpaid the annual option fee.
Leave is declined to amend the pleadings to add a new cause of action regarding contractual mistake.
The appeal is dismissed.
Solicitors:
Henderson Reeves, Whangārei for Appellant
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