IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-412
[2023] NZHC 834
BETWEEN SIKA (NZ) LIMITED
Plaintiff
AND
PEGASUS ENGINEERING LIMITED
First Defendant
AND
GAVIN ERNEST LAWRY
Second Defendant
Hearing: 20 March 2023 Appearances:
A W Johnson and C W Gambrill for Plaintiff D J C Russ for First and Second Defendants
Judgment:
19 April 2023
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 19 April 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
SIKA (NZ) LTD v PEGASUS ENGINEERING LTD [2023] NZHC 834 [19 April 2023]
Introduction
[1] Sika (NZ) Ltd (Sika) supplies a range of specialty products for construction and industrial purposes including intumescent coatings.
[2] Pegasus Engineering Ltd (Pegasus) is an engineering company. Gavin Lawry is a shareholder and director of Pegasus.
[3] Pegasus was contracted to undertake the supply and fabrication of structural steel for the construction of buildings at Lincoln University. This included the application of an intumescent coating to the structural steel to protect its load bearing capacity against fire.
[4] On 24 June 2021, Mr Lawry completed a credit account application form (the credit application) with Sika on behalf of Pegasus. The credit application was accepted by Sika. Pegasus thereafter placed orders with Sika for goods relating to the Lincoln University project. Between September 2021 and April 2022 Sika supplied Pegasus with intumescent coatings and related products at a total price of $518,536.82 for which Pegasus has paid Sika $274,406.02, leaving a balance of $244,130.80.
[5] Sika applies for summary judgment against Pegasus and Mr Lawry to recover the $244,130.80 along with contractual interest and costs. It brings its claim against Pegasus as the party to whom the product was supplied under the terms of the credit application. It claims against Mr Lawry on the basis he signed the credit application form as a guarantor of Pegasus’s obligations. Both Pegasus and Mr Lawry dispute the claims.
[6] There is no dispute that Sika supplied the product that was ordered by Pegasus and at the correct price. Pegasus says, however, that in placing orders with Sika it relied upon representations made by Sika that the intumescent coatings were suitable for both off-site and on-site application. It says such representations were false and misleading as the products were unsuitable for on-site application or incapable of being applied on-site to the specifications required for the project. Pegasus says as a result of the false and misleading representations it has suffered losses that exceed the
amount claimed by Sika. It says it has crossclaims which are a defence to summary judgment.
[7] Sika does not accept that any false or misleading representations were made but says, in any event, Pegasus is unable to oppose summary judgment because the credit application included an effective no set-off clause. Sika says Pegasus must pay the balance owed and pursue its crossclaims in other proceedings. Responsibly, Sika accepts that if…
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- Case
- [2023] NZHC 834
- Decision Date
CaseChat Overview and Summary
The court granted summary judgment in favour of Sika against Pegasus for the outstanding amount of $244,130.80, along with contractual interest and costs. The court dismissed Sika's application for summary judgment against Gavin Lawry and reserved costs for further discussion between the parties.
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