Onyx Bar & Cafe (Cambridge) Limited v Jans

[2012] NZHC 948

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2011-419-1127 [2012] NZHC 948

BETWEEN  ONYX BAR & CAFE (CAMBRIDGE) LIMITED

Plaintiff

ANDTREVOR HERMAN JANS Defendant

Hearing:         2 May 2012

Counsel:         PJ Morgan QC for plaintiff

KJ Crossland for defendant

Judgment:      8 May 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]

This judgment was delivered by me on 8 May 2012 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Welsh McCarthy, PO Box 434, Hawerea 4640

Stace Hammond, PO Box 19 101, Hamilton 3240

ONYX BAR & CAFE (CAMBRIDGE) LIMITED V JANS HC HAM CIV 2011-419-1127 [8 May 2012]

The application

[1]      The  plaintiff  applies  for  summary  judgment  against  the  defendant  for

$247,500 plus interest and costs.

[2]      The plaintiff’s claim is based on a cause of action in tort.  The cause of action is specifically pleaded in paragraphs 11, 12 and 13 of the statement of claim and which I now set out:

11.0      The defendant has knowingly procured and/or permitted a breach of the covenant by having Trevor Wilson and The Stables Sports Bar Ltd carry on the business of Stables Bar and Grill in the manner described herein.

12.0     The  defendant  has  derived  the  benefit  of the  conduct  of Trevor

Wilson and caused loss to the plaintiff.

13.0As a result of the defendant’s actions the plaintiff has suffered loss in the sum of $247,500 being the sum it paid for that part of the goodwill  of  the  business  that  was  protected  by  the  Restraint  of Trade.

[3]      Mr Morgan submitted in response to a question from me, that the pleading in paragraph 12 of the words “derived the benefit of the conduct of Trevor Wilson and” is unnecessary to the cause of action and accordingly is not something for which proof is required.

The opposition

[4]      There are effectively four grounds advanced in opposition, namely:

(a)       The  Court  should  stay  the  interlocutory  application  for  summary judgment because, in relying on the document discovered in CIV-

2009-019-194 Onyx Bar & Café (Cambridge) Ltd v Denaro Ltd, the plaintiff is in breach of its implied undertaking not to use material obtained on discovery for any purpose other than the proceeding in which the discovery is made;

(b)The application for summary judgment is defective in that it does not specify the grounds in compliance with r 12.4(1) and (4)(a), Form G31 of Schedule 1 to the High Court Rules.  It does not specify the particular provision of an enactment, principle of law or judicial decision relied upon;

(c)      The proceeding is an abuse of process of the Court and the plaintiff is estopped from bringing the claim having regard to the principle enunciated in Henderson v Henderson;1 and

(d)      The defendant has a defence to the plaintiff’s claim on the merits.

The Courts approach to a plaintiff ’s summary judgment application

[5]      Rule 12.2 of the High Court Rules requires that a plaintiff satisfy the Court that a defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.  The obligations imposed by the rule have been examined in a number of authorities.

[6]      The correct approach to an application for summary judgment by a plaintiff was summarised in Krukziener v Hanover Finance Ltd where the Court said:2

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11

PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

1   Henderson v Henderson (1843) 3 Hare 100, [1843-60] All ER Rep 378.

2   Krukziener v Hanover Finance Ltd [2008] NZCA 18; [2010] NZAR 307 at [26].

[7]      In Pemberton v Chappell the Court also commented on the position where a

defence is not evident on a plaintiff’s pleading and said:3

If a defence is not evident on the plaintiff’s pleading I am of opinion that if the defendant wishes to resist summary judgment he must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue. In this way a fair and just balance will  be  struck  between  a  plaintiff’s  right  to  have  his  case  proceed  to judgment without tendentious delay and a defendant’s right to put forward a real defence.

[8]      That position was further reinforced in Australian Guarantee Corporation

(New Zealand) Ltd v McBeth where the Court said:4

Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defences which are raised. If not, the plaintiff’s verification stands unchallenged and ought to be accepted unless it is patently wrong.

[9]      Hypothetical  possibilities  in  vague  terms,  unsupported  by  any  positive assertion or corroborative documents will not frustrate the obligation on a plaintiff to discharge the onus of proof: SH Lock (NZ) Ltd v Oremland.5

[10]     In Middleditch v NZ Hotel Investments Ltd, the Court raised a caution and said:6

The Courts must of course be alert to the possibility of injustice in cases in which some material facts to establish a defence are not capable of proof without interlocutory procedures such as discovery and interrogatories.  That does not mean that defendants are to be allowed to speculate on possible defences which might emerge but for which no realistic evidential basis is put forward.

[11]     A court is not required to accept uncritically any or every disputed fact: Eng Mee  Yong  v  Letchumanan.7      However,  the  Court  will  not  reject  even  dubious affidavit evidence, even if there is suspicion as to the good faith of the deponent, if

there is an essential core of complaint that supports a defence.   In essence, the

3   Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.

4   Australian Guarantee Corporation (New Zealand) Ltd v McBeth [1992] 3 NZLR 54 (CA) at 59.

5   SH Lock (NZ) Ltd v Oremland HC Auckland CP641/86, 19 August 1986.

6   Middleditch v NZ Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.

7   Eng Mee Yong v Letchumanan [1980] AC 331 (PC).

inquiry is whether or not the person’s assertion passes the threshold of credibility:

Pemberton v Chappell;8 Orrell v Midas Interior Design Group Ltd.9

[12]     In Tilialo v Contractors Bonding Ltd it was observed:10

Drawing the line between mere assertions of possible defences and material which sufficiently raises an arguable defence so that the defendant should not be denied the opportunity to employ interlocutory procedures and have a trial is a matter of judgment. Views may well differ.

Background

[13]     There is no real dispute concerning the background facts.  They have been summarised in judgments delivered in a previous proceeding between this plaintiff as plaintiff and Denaro Ltd as first defendant, Trevor Wilson as second defendant, and Stables Sports Bar Ltd as third defendant.

[14]     Kingston Investments Ltd and/or its nominee purchased from Denaro Ltd a business  operating  in  Cambridge  as  Onyx  Bar  &  Café  pursuant  to  a  sale  and purchase agreement dated 19 November 2007.  Kingston Investments Ltd nominated the plaintiff as purchaser.   The purchase was settled and possession was given on

21 January 2008. The contract contains a restraint of trade clause as follows:

Both the vendor and Trevor Wilson personally covenant with the purchaser not  to  carry  on  a  restaurant,  café  and  bar  business,  either  directly  or indirectly  within  a  10  kilometre  radius  of  the  Cambridge  CBD,  to  also include KW, FE and GD Wilson.  This clause excludes the vendor’s licence function centre and café at the Aquatic Centre in Cambridge.

[15]     The purchase price comprised tangible assets of $338,000 and intangible assets of $327,000 (which includes goodwill) and stock-in-trade of $20,000. In the District Court proceeding that Judge found that the value of the restraint clause was in excess of $200,000.  Mr Crossland did not put quantum in issue in this case.  That approach is appropriate because the only evidence in the District Court as to the value of the restraint clause was the evidence given by Mr Burn who valued the

restraint clause at $247,500, which is the amount claimed in this proceeding.

8   Pemberton v Chappell, above n 3.

9   Orrell v Midas Interior Design Group Ltd (1991) 4 PRNZ 608 (CA) at 613.

10    Tilialo v Contractors Bonding Ltd CA50/93, 15 April 1994at 6

[16]     The defendant was at material times a director of The Stables Sports Bar Limited.  He held 750 shares in the company together with Redoubt Trustees Ltd. Kinross Developments Ltd held 250 shares.

[17] The defendant, Mr Trevor Wilson, and The Stables Sports Bar Ltd entered into a deed of indemnity. It recorded that the defendant and Trevor Wilson had decided to purchase the premises immediately alongside the plaintiff’s premises. Those premises were known as Ristorante Rosso. The plan was to convert those premises into a bar bistro called The Stables Sports Bar Ltd. They agreed to share equally in the profits and losses of the business. The document recorded that Trevor Wilson was subject to the restraint of trade clause in the sale and purchase contract referred to in [14]. The deed recorded that to enable Trevor Wilson to participate, the defendant agreed to purchase the business in the name of the company The Stables Sports Bar Ltd and to have that company enter into the lease. The deed recognised that the defendant might incur a personal liability as a consequence and recorded that Trevor Wilson had agreed to indemnify the defendant for an amount equal to 50 per cent of the defendant’s personal liability. It also provided that, in consideration of the defendant agreeing to be a director of The Stables Sports Bar Limited and assuming liability for the operation of the business and lease, Trevor Wilson covenanted with the company and with the defendant that he would indemnify the company and the defendant to an amount of 50 per cent of the liability of the defendant. The deed further provided that when the restraint of trade terminated, the defendant would transfer 50 per cent of the shares to Trevor Wilson for no consideration. He would appoint Trevor Wilson as a director and the indemnity would cease, save for any liability that occurred prior to that date. The deed recorded that the defendant agreed to guarantee the company’s obligation to ANZ National Bank to an amount of $150,000.00.

[18]     The defendant and Trevor Wilson then set up The Stables Sports Bar Ltd.  It began operation in September 2008.  Evidence is contained in the affidavits as to the business that was carried on and its similarity with that of the Onyx Bar & Café (Cambridge) Ltd.

[19]     The plaintiff issued proceedings in the District Court against the vendor, Denaro Ltd, under the sale and purchase agreement, Trevor Wilson and The Stables Sports Bar Ltd.  It sought an injunction and damages.  Discovery was given.  That revealed the existence of the deed of indemnity.  The plaintiff amended its statement of claim to plead, and rely upon, the deed of indemnity in its proceeding against Trevor Wilson and The Stables Sports Bar Ltd.   The amended statement of claim, including the cause of action that The Stables Sports Bar Ltd knowingly procured a breach of the covenant by the vendor, Denaro Ltd and Trevor Wilson, and thereby derived  the  benefit  of  Trevor  Wilson’s  conduct  in  breaching  the  covenant  and causing the plaintiff loss.

[20]     I refer to the previous judgments.   The first judgment is the judgment of District Court Judge JE Maze delivered on 1 June 2010 and after a trial in the District Court. The second is the judgment delivered on appeal from that decision by Allan J  on  7 February  2011.    The  appeal  was  prosecuted  by  Denaro  Ltd  and Mr Wilson.    The  Stables  Sports  Bar  Ltd  had  been  placed  into  liquidation  by resolution of its shareholders the day before the hearing of the appeal before Allan J on 22 October 2010 and did not participate in the appeal.

[21]     Judge Maze entered judgment against Denaro Ltd, Trevor Wilson and The Stables Sports Bar Ltd for $200,000, plus interest and costs.   The plaintiff had abandoned  the  excess  portion  of  its  claim  so  that  it  could  come  within  the jurisdiction of the District Court. The appeal to the High Court was dismissed.

[22]     The plaintiff’s judgment, however, is of little value to it.   Denaro Ltd has been struck off the Register of Companies.  Mr Trevor Wilson is understood to be insolvent.  The Stables Sports Bar Ltd was placed into liquidation and struck off the Register of Companies on 12 August 2011.

[23]     The plaintiff now brings this application for summary judgment and says that the goodwill of the business, which is essentially the value of the restraint of trade, has been lost to it because of the conduct of Trevor Wilson, which was procured by The Stables Sports Bar Ltd and the defendant.  It claims to recover the value of the

restraint of trade, which was assessed by Mr Burn in the previous proceeding and which has not been challenged in this proceeding.

Analysis of the grounds of opposition

The first ground in opposition

[24]     The first ground advanced in opposition concerns the use of the deed of indemnity that had been obtained by the plaintiff through the discovery process in the District Court proceeding.

[25]     The judgment delivered in the District Court proceeding referred specifically to the deed of indemnity in the following passage:11

Mr Wilson indemnified Trevor Jans and Stables against claims arising from his involvement in Stables. The same Deed recorded Mr Wilson’s [a mistake for Jans] agreement to be sole director of Stables, and assumption of liability for operation of the business and the lease. The recitals of the deed specifically refer to Mr Wilson’s obligations under the restraint clause.

[26]     The appeal judgment of Allan J also made reference to deed of indemnity as follows:12

Among the documents discovered by the appellants was a deed between Mr Wilson, his partner, a Mr Trevor Jans, and Stables, in which Mr Wilson’s obligations to the respondent under the restraint of trade covenant were recorded, and the other parties to the deed were indemnified by Mr Wilson against any claims or losses arising from a breach by him of that covenant.

[27]     Mr Crossland initially relied on r 8.30(4) of the High Court Rules which provides:

8.30     Use of documents

….

(4)      A party who obtains a document by way of inspection or who makes a copy of a document under this rule—

11    Onyx Bar & Café (Cambridge) Ltd v Denaro Ltd DC Hamilton CIV-2009-019-194, 1 June 2010 at

[5].

12    Denaro Ltd v Onyx Bar & Café (Cambridge) Ltd HC Hamilton CIV-2010-419-777, 7 February

2011 at [9].

(a)       may use that document or copy only for the purposes of the proceeding; and

(b)       except for the purposes of the proceeding, must not make it available to any other person (unless it has been read out in open court).

[28]     He  observed  that  this  part  of  the  Rule  had  been  introduced  with  the amendments  to  High  Court  Rules  introduced  on  1 February  2012.    There  was initially some disagreement between counsel as to precisely what had taken place in the  District  Court.    I  invited  Mr Morgan  to  consider  an  oral  application  to  be discharged from the undertaking.   He duly made such an application.   I allowed Mr Crossland time to take instructions on it.  He advised that his instructions were not to oppose the application.

[29]     I rule that the plaintiff be released from the undertaking.  My reasons for that ruling can be summarised very shortly as follows:

(a)      The  document  would  have  been  available  on  discovery  in  this proceeding in any event;

(b)There is no prejudice to the defendant because he is a party to the document;

(c)      He would, as a director of The Stables Sports Bar Ltd, which was a defendant in the previous proceeding, have had access to it and would have known of its use in that proceeding;

(d)It has been obviously produced and analysed and commented upon at some length in the judgments given in the prior proceeding; and

(e)      There   is   nothing   in   the   document   itself   and   its   surrounding circumstances that would justify a confidentiality order being made in respect of the document.

[30]     Even without the above application, I would have ruled that the reference by counsel to the document, even though it might only have been in part, together with

its analysis in the judgments are sufficient to comply with the requirement that it had been read out in open court for the purposes of r 8.30.  The rule’s purpose seems to have been to codify the common law position.13    Accordingly, the first ground for opposing summary judgment cannot be sustained.

The second ground in opposition

[31]     The second ground advanced by Mr Crossland concerned the adequacy of the documents filed on which summary judgment is sought.  The short answer to this ground is that the defects that might amount to an irregularity could be cured by amendment and by the grant of an adjournment to give the defendant an opportunity to consider the amendment if that is required.  That was the approach I adopted in Retail Trading Services Ltd v Morris which judgment was upheld on appeal.14

[32]   The deficiencies are cured by the information provided in counsel’s submissions.    Mr Crossland  advised  that  he  did  not  require  an  adjournment  to consider the matter further and, on that basis, this ground was not advanced by him. Accordingly, the second ground in opposition to summary judgment cannot be sustained.

The third ground in opposition

[33]     Before discussing the third ground of whether these proceedings are an abuse of process, it is helpful to analyse what has been advanced by the defendant on the merits.

The fourth ground in opposition

[34]     The plaintiff’s cause of action asserts that the defendant induced a breach of

contract by Wilson and The Stables Sports Bar Ltd.

13    Wilson v White [2005] 3 NZLR 619 (CA).

14    Retail Trading Services Ltd v Morris (1997) 11 PRNZ 164 (High Court) and Morris v Retail

Trading Services Ltd CA173/97, 22 October 1997.

[35]     The defendant claims that he did not intend to have Mr Wilson and The Stables Sports Bar Ltd breach the terms of the restraint of trade.  He says that what he did was based on legal advice.  He says:

I was of the belief that Trevor (Wilson) was the one that was prepared to run the commercial risk that his conduct might break his agreement with Onyx and so he was the one that would be implicated if there was ever any backlash.

[36]     He further claims that The Stables Sports Bar Ltd did not compete with the plaintiff.

[37]     Mr Morgan submitted that the defendant’s evidence cannot bear any scrutiny at all when considered in the light of the deed of indemnity.  I accept that submission when I consider the following matters:

(a)      The restraint of trade required Denaro Ltd and Trevor Wilson not to carry on a restaurant, café and bar business either directly or indirectly within a ten kilometre radius of the Cambridge CBD;

(b)The defendant admits that he knew of the existence of the restraint of trade;

(c)      The deed of indemnity records that the defendant and Wilson had agreed to purchase the restaurant known as Ristorante Rosso in Cambridge, which was next door to the plaintiff’s bar and to convert it into a bar/bistro business under the name The Stables Sports Bar Ltd;

(d)The defendant and Wilson agreed to share equally in the profits and losses of that business and to contribute equally towards its operating costs;

(e)      The deed records that Trevor Wilson was subject to the restraint of trade that prevented him from carrying on a restaurant/café/bar business;

(f)      It records that the defendant agreed to be the sole director of the company and that he assumed liability for the operation of the business.   The deed further provided that in consideration of the defendant undertaking the matters recorded, that Trevor Wilson would indemnify him and The Stables Sports Bar Ltd from

all  actions,  proceedings,  claims,  demands,  expenses  and other liabilities of any nature which may be taken or made against the Company and/or Trevor [the defendant] or which may be incurred or become payable  by the Company and/or Trevor in connection with or on account of:

(a)     The business; or

(b)     The lease of the business premises;

PROVIDED HOWEVER that Trev’s (Wilson) liability pursuant to this Deed shall be LIMITED to an amount that is equal to fifty percent (50%) of Trevor’s personal liability in respect of (i) the business operations of the Company and (ii) the lease of the business premises AND PROVIDED FURTHER that this indemnity shall not extend to cover the Company or Trevor for any wilful breach of the law or any fraudulent or wrongful act or omission on the part of the Company or Trevor in the course of carrying on the business.

(g)On  termination  of  the  restraint  provision  is  made  in  the  deed  of indemnity for the defendant to transfer 50 per cent of the shares in the company to Trevor Wilson for no consideration and to appoint him as a director.

[38]     The clear purpose of the deed of indemnity was to make it look as if the defendant was running the business without involvement from Trevor Wilson.

[39]     What is particularly significant when one considers this case is whether the defendant’s own evidence could provide a sound basis upon which a defence to the claim could be mounted.   It is for that reason that I concentrate on his evidence, rather than that of the plaintiff’s.   The plaintiff’s evidence is, of course, that the business, for all intents and purposes, was identical in its general operation to that of the plaintiff.

[40]     The  defendant,  however,  claims  that  The  Stables  Sports  Bar  Ltd  “looks nothing like Onyx”.   He admits, however, that his intention was to operate “a bar first  and  offer  pub-style  food”.    That,  in  fact,  is  what  he  acknowledges  was undertaken by The Stables Sports Bar Ltd.  He acknowledges that Stables sold food and liquor and provided menus and offered pub-style food.

[41]     In submissions both counsel referred to a number of cases where the tort has been analysed stemming from Lumley v Gye, the New Zealand Court of Appeal decision  in  Jiao  v  Barge  and  OBG  Ltd  v Allan.15      Development  of  the  tort  is discussed in The Law of Torts in New Zealand where the learned authors suggest that the courts in New Zealand will now adopt the approach of the House of Lords OBG Ltd v Allan so that the elements necessary for liability to attach under this tort are:16

(a)       There must be a legally enforceable contract in existence;

(b)The defendant must have engaged in conduct which in fact induced a breach of the contract;

(c)       The defendant must have known that his or her conduct would induce the breach;

(d)The defendant’s conduct inducing the breach must have caused loss or damage to the plaintiff;

(e)       If elements (a) to (d) are satisfied, a defence of justification might arise, but only in exceptional circumstances.

[42]     In SGS New Zealand Ltd v Nortel (1998) Ltd Winkelmann J discussed the elements required for the tort of inducing breach of contract and after referring the

House of Lords decision in OBG Ltd v Allan said:17

15    Lumley v Gye (1853) 2 EL & BL 216, 118 ER 749; Jiao v Barge CA236/05, 19 July 2006; OBG Ltd v Allan [2008] 1 AC 1 (HL).

16    Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) at

[13.2].

17    SGS New Zealand Ltd v Nortel (1998) Ltd HC Whangarei CIV-2006-488-384, 20 December 2007 at [122].

(a)       The  defendant  knew  of  the  existence  of  a  legally  enforceable contract;

(b)      and took steps to induce the breach of contract knowing that it would cause a breach;

(c)       and in so doing intended to cause a breach of contract;

(d)      and the contract was breached as a result of the inducement;

(e)       and  the  breach  caused  loss  to  the  plaintiff  (McIntyre  v  Bianchi

[1992] 3 ERNZ 1057).

[43]     Mr Crossland submitted that the proposition advanced by Mr Morgan that an intention to cause harm to the plaintiff was not an essential element of the tort, in some way introduces a lower threshold than the law requires and is therefore incorrect.  What is required is an objective assessment of the essential elements.  In this case, there is no contest that there was a legally enforceable contract, namely the sale  and  purchase  contract  that  the  plaintiff  entered  into  with  Denaro  Ltd  and Mr Wilson.

[44]     It is clear that the defendant intended to be a party to the arrangement that led to the formation of The Stables Sports Bar Ltd and the setting up of the business of a bar and café next door to the plaintiff’s acquired business.

[45]     It is clear that the defendant knew of the existence of the terms of the sale and purchase contract and, in particular, the restraint of trade provision.  The breach of the restraint of trade provision arose by the operation of The Stables Sports Bar business.  No justification for what took place has been provided to me.  The fact the defendant thought that he may have been legally justified in what he did because of a legal opinion does not assist because nothing has been placed before me which in any way justifies the actions that were undertaken.  If, in fact, the legal opinion had some substance to it, I would have expected to have been told what foundation existed for the proposition that the defendant incurred no liability for the actions that he undertook. There simply has been no such information placed before the Court.

[46]     Finally, as occurred in the District Court and upheld on appeal, the actions of the defendant in the promotion and support of The Stables Sports Bar meant that the

plaintiff lost the complete value of the restraint of trade provision in the sale and purchase contract.

[47]     When I take all these factors into account, I fail to see how there is any basis for a defence to the plaintiff’s claim on the merits.  Accordingly, I conclude that the fourth ground advanced for opposing summary judgment cannot be sustained.

The third ground in opposition - continued

[48]     I return to consider the third ground advanced in opposition to the application for summary judgment.

[49]     The defendant claims that this proceeding is an abuse of process because the plaintiff has previously brought a claim against three other defendants and could have proceeded in the same action against this defendant.  This ground of defence is said to be based on the principle first enunciated in Henderson v Henderson.18

[50]     Counsel’s submissions gave helpful summaries of the important authorities in relation to this area of the law.   The starting point, as I have mentioned is the judgment of Sir James Wigram VC in Henderson v Henderson.19    The authorities were reviewed more recently by the Court of Appeal in Commissioner of Inland Revenue v Bhanabhai where reference was made to the examination of the principle in Johnson v Gore Wood & Co (a firm) and the discussion in Lai v Chamberlains.20

[51]     It is not necessary that I review comprehensively the limits of the Court’s power to strike a proceeding out as an abuse of process.  All that is required, in this case, is to look at the following significant factors, namely:

(a)      This  proceeding  does  not  put  the  defendant  in  jeopardy  twice  in respect of the same claim.  Here there is no basis to conclude there is an  unjust  harassment  of  the  defendant  by  the  bringing  of  this

proceeding;

18    Henderson v Henderson, above n 1.

19    Ibid.

20    Commissioner of Inland Revenue v Bhanabhai [2007] 2 NZLR 478 (CA), Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.

(b)I can find no justification for the assertion that by bringing this claim there is some collateral attack on the prior judgments given, first in the District Court and second, in the High Court;

(c)      There  is  no  evidence  of  any  unfairness  to  any  party  in  the  first proceeding by bringing this proceeding against this defendant;

(d)A successful outcome to the plaintiff in this proceeding will not lead to any inconsistency between the result in this proceeding and the result in the first proceeding; and

(e)      I have examined the merits of this case and have formed the view on the material placed before me that there is no defence to the plaintiff ’s claim.

When all of these factors are taken into account I am not satisfied that there is any basis upon which the defendant could establish an abuse of process justifying the dismissal of this proceeding.

[52]     Accordingly I reject the third ground in opposition.

[53]     But for one additional matter the above analysis would lead to the position where I granted summary judgment in favour of the plaintiff for $247,500, plus interest in accordance with the Judicature Act 1908, plus costs.   The one matter, however, relates to the fact that the affidavits disclose that Mr Wilson has made payments of $20,000 and $50,000 in respect of the judgment obtained against him. Mr Morgan acknowledged that there are terms of settlement in existence between the plaintiff and Mr Wilson under which these payments were made.

[54]     Before I enter judgment finally in this case, therefore, I require from the plaintiff a memorandum that:

(a)       Indicates  any  authority  that  might  support  the  proposition  that  I

should ignore these payments; or, if there is no such authority

(b)What effect they have on the quantum claimed in this case and what effect any subsequent payments made under any deed of settlement may have.

Counsel shall cover these matters by memorandum which is filed and served.  If any issue is taken with the content of counsel for the plaintiff’s memorandum by counsel for the defendant, a response memorandum shall be filed seven days thereafter and I will convene a conference so that the matter can be appropriately investigated.

Costs

[55]     I reserve costs while the issue relating to quantum is resolved.

JA Faire

Associate Judge