Robins v Cartwright - [2022] NZHC 868

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-748

[2022] NZHC 868

BETWEEN
GARETH JOHN ROBINS

Plaintiff

AND

BENJAMIN EDWARD CARTWRIGHT

Defendant

Hearing: 27 April 2022 (VMR)

Appearances:

A Onley for Plaintiff

C Matsis for Defendant

Judgment:

29 April 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

ROBINS v CARTWRIGHT [2022] NZHC 868 [29 April 2022]

[1] The plaintiff applies for summary judgment for the balance of the purchase price he claims is owed by the defendant in respect of the sale of a real estate business.

[2] The plaintiff, by a written agreement undated but made in April 2016 (the Agreement), sold to the defendant a real estate business for $750,000 plus GST. The purchase price was payable in monthly instalments. Initially, the instalments were calculated with reference to a formula in the Agreement. In May or June 2018, the Agreement was varied to make the payments a set $11,000 plus GST per month.

[3] The defendant paid the instalments until December 2019, albeit intermittently from 18 June 2018, and has since made no further payments. At the time of the last payment the defendant had paid $226,447.22 towards the purchase price, leaving a balance of $523,552.78 plus GST payable under the instalment arrangement. When the plaintiff chased up payment in the New Year of 2020, the defendant did not offer any explanation as to why he had stopped making payments.

[4] As at 17 November 2021, that is, shortly before the statement of claim was issued on 24 November 2021, there were unpaid instalments of $430,650.00 including GST. Interest in respect of those unpaid instalments and in respect of earlier short paid instalments (some payments being made without the GST component), is claimed in the sum of $87,531.58. The defendant did not take issue with the plaintiff’s calculation of the amounts outstanding.

[5] The balance of the purchase price is pursued by the plaintiff as damages. I deal with the damages claim separately as, in my view, that claim is not suitable for summary judgment.

[6] Under the Agreement, from 1 April 2016, the parties were to operate the business jointly, with the plaintiff’s involvement decreasing over what was called the ‘Development Period’. That Development Period was initially for a year with the defendant having the option of extending the Development Period by up to a further year, along with a further six months’ extension (which is not relevant here). Payment of the purchase price was to commence upon the defendant repaying a $20,000 loan

provided for in the Agreement. That loan was paid in June 2016 and is not in issue. The Agreement then provided:

13.Upon payment in full of the Loan, Ben [the defendant] will pay the Purchase Price as follows:

a.Until the expiry of the Development Period and/or the Extension Period, by any amount of Ben’s income exceeding
$15,000 plus GST gross in any month, on the date on which Ben receives that income; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 868
Decision Date: 29 April 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Gareth John Robins, the plaintiff, sought summary judgment against Benjamin Edward Cartwright, the defendant, for outstanding payments due under a sale and purchase agreement for a real estate business. The agreement, made in April 2016, stipulated a purchase price of $750,000 plus GST, to be paid in monthly instalments. The defendant made payments until December 2019, leaving a balance of $523,552.78 plus GST. The plaintiff pursued the balance as damages. The court had to determine whether there was an arguable defence to the plaintiff's claim for the outstanding instalments.

The court found that the defendant's defence, based on alleged pre-contractual misrepresentations and breaches of contract, was not supported by evidence. The defendant claimed the business was only worth $30,000 and alleged the plaintiff abandoned the business. However, the defendant failed to provide any financial information or evidence to support these claims. The court concluded that the defendant's cross-claims lacked an evidential foundation, and therefore, the plaintiff was entitled to summary judgment for the unpaid instalments. The court dismissed the plaintiff's claim for damages for future instalments as it was arguable that the agreement remained in effect.

The court granted summary judgment to the plaintiff for the unpaid instalments of $430,650.00, plus interest of $87,531.58. The plaintiff was also awarded costs on a 2B basis plus disbursements. The court directed a telephone conference to be held in approximately six weeks' time for further directions regarding the balance of the plaintiff's claim.

Orders