IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000842
[2018] NZHC 3094
BETWEEN MOUNT GREY DOWNS LIMITED
Plaintiff
AND
PINOT PROPERTIES LIMITED
First Defendant
AND
STEPHEN CHARLES COHEN
Second Defendant
Hearing: 5 November 2018 Appearances:
R W Maze for Plaintiff/Applicant
A D Marsh for Defendants/Respondents
Judgment:
27 November 2018
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
(plaintiff’s summary judgment application)
Background – the contract
[1] The first defendant, Pinot Properties Ltd (Pinot), owns a property at 205 Manchester Street, Christchurch which was severely affected by the Canterbury Earthquake Sequence. Pinot was required by the Canterbury Earthquake Recovery Authority (CERA) to make the building safe.
[2] In September 2011, Pinot entered into a contract with Mount Grey Downs Ltd (Mount Grey) in relation to the work required on the buildings (the contract). The contract provided for payment as follows:
MOUNT GREY DOWNS LIMITED v PINOT PROPERTIES LIMITED [2018] NZHC 3094 [27 November 2018]
PAYMENT
All GST invoices will be forwarded for payment to the address upon this agreement on or before the 26th of the month. All invoices will be clearly set out to show individual trade’s hours, plant and equipment hours and sub contractors, material costs.
Information as day/time-sheets, copies of Sub contractors and materials will support all invoices submitted for payment.
The supporting documents
Introduction
[3] The defendants, as a separate ground of defence, assessed that Mount Grey failed to comply with its duties under the contract’s audit provision (as set out above at [2]). It was common ground between counsel that the audit provision imposed a date upon Mount Grey which was in the nature of an auditing arrangement.
[4] Pinot’s director, Stephen Cohen, (the second defendant) acknowledged in signing the contract on behalf of Pinot that he also personally guaranteed any debt outstanding to Mount Grey.
[5] Mount Grey subsequently undertook work on the property. It issued invoices to Pinot for that work (identified by Mount Grey as Job No. 4562) up to 31 July 2012. It asserts that it was entitled to payment for invoiced sums totalling $474,009.18 (including GST). Mount Grey acknowledges that Pinot has paid $112,782.83 (including GST) on account of its debt. Pinot made payment in March and May 2012 of $111,282.83 together with a further payment of $1,500 in April 2013. It is common ground that Pinot has made no payment since then.
[6]The affidavit evidence thereafter contains a difference between the deponents
– not able to be resolved in this summary judgment context – as to whether Pinot has paid any sum beyond the $112,782.83 figure on account of the 205 Manchester Street contract. For Mount Grey, Mr Chronican exhibited a 10 May 2012 email he sent to Mr Cohen. It refers to payments of $55,000 having been paid by Vero (Pinot’s insurer) on 205 Manchester Street. Mr Chronican does not in his affidavit state that there is an error in the email. However, the accountant who undertakes work for Mount Grey, Claire…
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- AGLC
- Mount Grey Downs Ltd v Pinot Properties Ltd [2018] NZHC 3094
- Case
- [2018] NZHC 3094
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CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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