Mariteq Fabricators Ltd v Quigley's Technical Services Ltd

[2012] NZHC 2516

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2012-470-533 [2012] NZHC 2516

BETWEEN  MARITEQ FABRICATORS LTD Plaintiff

ANDQUIGLEY'S TECHNICAL SERVICES LTD

Defendant

Hearing:         27 September 2012

Counsel:         T J G Allan for Plaintiff

J A MacGillivray for Defendant

Judgment:      27 September 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Grove Darlow, PO Box 2882, Auckland

Tompkins Wake, PO Box 258, Hamilton

MARITEQ FABRICATORS LTD V QUIGLEY'S TECHNICAL SERVICES LTD HC TAU CIV 2012-470-533 [27 September 2012]

Introduction

[1]      Mariteq Fabricators Ltd (Mariteq) seeks an interim injunction designed to compel Quigley Technical Services Ltd (Quigley’s) to perform a condition of Deed of Settlement (the Deed) dated 5 December 2011.  It also seeks to restrain Quigley’s from asking the Registrar of this Court to set down for hearing two related proceedings brought by Quigley’s: one is an application to put Mariteq into liquidation (the liquidation proceeding) while the other seeks a declaration that a compromise with creditors, into which Mariteq entered under Part XIV of the Companies Act 1993, is not binding on it (the compromise proceeding).

[2]      The application came on for hearing before me today.  From the papers filed, the central  issue  appeared  to  be whether cl 11  of the Deed  operated  to  require Quigley’s to agree to a substitute investigating accountant to determine whether Quigley’s would receive a greater payment under the compromise than it would if Mariteq  were  placed  in  liquidation.     That  issue  arose  because  the  agreed investigating accountants “McDonald Vague (Auckland Office)” had resigned, following assertions of pre-determination on their part.  To counter that, Quigley’s contended that McDonald Vague’s resignation had the effect of frustrating the contract, primarily based on that conclusion having previously been reached in cases

involving the appointment of a specific arbitrator.[1]

[1] Counsel referred to Bremer Vulkan Schiffbau und Machinenfabrik [1981] 1 All ER 289 (HL).

[3]      Other issues were raised.  For present purposes, it is unnecessary to rehearse them.

Developments during the hearing

[4]      During the course of the hearing, Mr MacGillivray, for Quigley’s, indicated that his client no longer opposed an order restraining it from applying to have the liquidation and compromise proceedings set down for hearing.  He was prepared to

deal with the issue on a final basis, by reference to its “frustration” argument.

[5]      In answer to a question from me, Mr MacGillivray confirmed that, if I were to  hold  that  the  agreement  had  not  been  frustrated,  Quigley’s  would  join  with Mariteq in appointing a replacement investigating accountant to perform obligations conferred by the Deed of Settlement.

[6]      Discussions then took place over procedural issues.  Mr Allan, for Mariteq, was keen to preserve his ability to deal with the application on an interim basis.  He submitted that a restraining order should be made as sought until such time as the substantive issue was resolved.  Subsequently, he made a helpful suggestion that the substantive issue could be determined on an application for summary judgment.  Mr MacGillivray concurred with that suggestion.

[7]      I expressed some concern about making an order restraining a request to set the proceedings down, particularly in the context of a liquidation proceeding which is collective in nature.  The better course, with which counsel now concur, is for the liquidation  and  compromise  proceedings  to  be  called  at  the  same  time  as  the proposed summary judgment application, but for mention only.  It will then be open for the Court to make further directions in respect of each of those proceedings, once the outcome of the substantive point is known.

[8]      Counsel agree that an application for summary judgment can be based on a confined agreed bundle of documents (including some already filed) and be ready for hearing promptly. The timetable I establish allows for that.

Orders

[9]      I make the following orders:

(a)      Mariteq shall file and serve an interlocutory application for summary judgment in this proceeding on or before 3 October 2012, to enable the “frustration” issue to be determined.   That will also incorporate argument on the cl 11 point.  A notice of opposition shall be filed and served on or before 10 October 2012. An agreed bundle of documents shall  be  filed  and  served  on  or  before  17  October  2012.    That

application is set down for hearing (on a provisional basis) at 10am on

26 October 2012, in Auckland.  If any difficulties arise in confirming that fixture, the Registrar will arrange for a telephone conference to be held promptly, so that an alternative date suitable to counsel can be procured.

(b)The present application for an interim injunction is adjourned to the date on which the application for summary judgment will be heard.  It is not intended that any orders will be sought on that application.  The adjournment is for the purpose of preserving the parties’ respective positions as to costs.  I reserve all questions of costs in relation to the present application and the proceeding generally.

(c)      The liquidation  proceeding,[2]   and  the compromise proceeding,[3]   are adjourned for mention before me, at the time the summary judgment application is heard.  That direction supersedes an earlier adjournment to a Registrar’s List to monitor the outcome of the present proceeding.

[2] CIV 2010-463-394.

[3] CIV 2010-463-878

[10]     I thank counsel for their assistance in finding a relatively straightforward route to resolving the fundamental problems arising in this litigation; particularly,

having regard to the passage of time.

P R Heath J