TNL International Limited v Bullocks Freightmasters International Proprietary Company Limited

[2025] NZHC 1232

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2922

[2025] NZHC 1232

BETWEEN

TNL INTERNATIONAL LIMITED

Plaintiff

AND

BULLOCKS FREIGHTMASTERS INTERNATIONAL PROPRIETARY COMPANY LIMITED

Defendant

MOVe LOGISTICS & WAREHOUSING LIMITED

Third Party

Hearing:	5 May 2025
Appearances:	Craig R Langstone for the Defendant Josh J Pietras for the Third Party
Judgment:	20 May 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Third party’s application for defendant’s summary judgment or strike-out]

This judgment was delivered by me on 20 May 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Fee Langstone (Craig R Langstone), Auckland, for the Defendant Duncan Cottrell (Josh J Pietras), Wellington, for the Third Party

TNL INTERNATIONAL LIMITED v BULLOCKS FREIGHTMASTERS INTERNATIONAL PROPRIETARY COMPANY LIMITED [2025] NZHC 1232 [20 May 2025]

Introduction

[1]    This is an interlocutory application by the third party, MOVe Logistics & Warehousing Limited (MOVe), for leave to apply for summary judgment out of time and to enter summary judgment in its favour against Bullocks Freightmasters International Proprietary Company Limited (Bullocks). In the alternative, MOVe applies for Bullocks’ third-party claim against it to be struck out.

[2]Bullocks opposes MOVe’s application.

Background

[3]    On 9 September 2021, Bullocks engaged the plaintiff, TNL International Limited (TNL), to act as its freight forwarder for a large consignment of steel pipes arriving from China. MOVe was engaged as TNL’s logistics agent for the consignment.

[4]    Between 2 and 3 November 2021, Bullocks advised TNL of the number of containers and the plan for sailings, advising that the arrivals would be staggered. MOVe  advised TNL that it  would be able to unload and transport a maximum  of  10 container loads per week.

[5]    By  26  November  2021,  Bullocks  advised  TNL   and   MOVe   that   all 112 containers would be all arriving in January 2022.

[6]    MOVe agreed that it could handle the overall volumes, so long as the arrivals were spaced out. However, unbeknownst to MOVe at the time, the project site in Taupo was not able to accept deliveries until 11 January 2022.

[7]    Between 7 January and 30 January 2022, 99 of the containers arrived at the Port of Tauranga. Due to a range of factors at the time, MOVe was unable to unload and deliver the agreed 10 containers per week over this period. From early February

to  mid-March  2022,  MOVe  transported  a   total  of  96  containers   (averaging   19 containers per week).

[8]    Due to delays in moving the containers from the port, TNL was charged demurrage and detention fees totalling $529,123.16 by the port company.

[9]    On 26 April 2022, TNL wrote to MOVe and quantified MOVe’s liability for its share of the demurrage and detention fees at $228,954.52 plus GST. On 3 May 2022, TNL issued an invoice to MOVe for the same amount which was immediately disputed.

[10]   On 9 June 2022, TNL informed Bullocks that MOVe had been invoiced for the demurrage  and  detention  fees  caused  by  MOVe’s   initial  failure  to  transport   10 containers per week. TNL also requested Bullocks to ask its own client to cover the balance of the demurrage and detention fees.

[11]   On 30 August 2022, TNL provided Bullocks with a detailed analysis of the life cycle of the project, comparing the proposed total arrivals and de-vans (10 per week), against the total arrivals and actual de-vans that took place during the project. On this basis, Bullocks’ liability was quantified at $300,168.64.

[12]   On 31 December 2022, MOVe sent a statement of account to TNL for its overdue delivery fees, totalling $250,020.31 including GST.

[13]   Some 9 months later, on 29 May 2023, TNL’s lawyers wrote to Bullocks and made demand for the outstanding $300,168.64 in demurrage and detention fees plus interest.

[14]   On 9 June 2023, MOVe and TNL reached a settlement, with each party agreeing to write off their own invoices. There was a small difference between the two invoices which was absorbed by TNL.

[15]   Five months later, on 21 November 2023, TNL filed proceedings against Bullocks for the outstanding demurrage and detention fees.

[16]   On 20 February 2024, Bullocks filed a defence to the proceedings and joined MOVe as a third party.

Leave to bring summary judgment application

[17]   MOVe requires leave to apply for summary judgment out of time as the application was not filed at the same time as the statement of defence.

[18]   The Court has a discretion to grant leave to a defendant to apply for summary judgment after a statement of defence has been filed under r 12.4(3) of the High Court Rules 2016. The rules do not set out any criteria for granting leave. The question is a discretionary one, however three relevant factors bearing on the exercise of the discretion were set out in Tip Top Icecream Co Ltd v Polarland Ltd:1

(a)Has the delay in filing been satisfactorily explained?

(b)Are the merits of the applicant’s summary judgment application strong and therefore deserving of determination at a time later than prescribed by the rules?

(c)Is there any risk of a miscarriage of justice by determining the application at that later point in time?

Legal principles

Defendant’s summary judgment

[19]   Rule 12.2(2) of the High Court Rules 2016 provides that the Court may enter judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[20]   The test for defendant’s summary judgment was set out by the Court of Appeal in Stephens v Barron:2

(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

1      Tip Top Ice Cream Co Ltd v Polarland Ltd (2002) 7 NZBLC 103,564 at [28].

2      Stephens v Barron [2014] NZCA 82 at [9] (footnotes omitted).

(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.

(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.

(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.

(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.

[21]In Westpac Banking Corp v MM Kembla New Zealand Ltd, Elias CJ said:3

[63]      Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff's claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff's case prematurely before completion of discovery or other interlocutory steps and before the plaintiff's evidence can reasonably be assembled.

[64]      The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.

[22]   In Bernard v Space 2000 Ltd, Thomas J, referring to r 12.2(2)’s predecessor, described the onus on the defendant as requiring a “king hit”:4

[21] Rule 136(2), as indicated in Kembla (at 313), is  only appropriate  where the defendant has a “clear answer to the plaintiff which cannot be contradicted”. Summary judgment for a defendant “will arise where the

3      Westpac Banking Corp v MM Kembla New Zealand Ltd [2001] 2 NZLR 298.

4      Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA) (citations omitted).

defendant can offer evidence which is a complete defence to the plaintiff's claim”. The requirement that there be a clear answer which cannot be contradicted and a complete defence before judgment is entered for a defendant under r 136(2) is not to be disregarded. Examples which are given of appropriate cases for summary judgment under the subrule are where the wrong plaintiff has proceeded or where the situation is clearly one of qualified privilege. Thus, the subrule contemplates an answer which is clear-cut; what in colloquial language would be described by counsel as a “king hit”.

Strike out principles

[23]Rule 15.1 of the High Court Rules 2016 provides, relevantly:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading;

(b)is likely to cause prejudice or delay; or

(d)      is otherwise an abuse of the process of the court.

[24]There are established criteria for strike out:5

(a)A strike out application proceeds on the assumption the pleaded facts are true, unless those pleaded facts are entirely speculative or without foundation.

(b)The cause of action or defence must be clearly untenable.

(c)The jurisdiction is to be exercised sparingly and only in clear cases.

(d)The jurisdiction is not excluded by the need to decide difficult questions of law.

(e)The Court should be slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation.

Submissions for MOVe

Leave

[25]Mr Pietras for MOVe, submits in support of leave being granted:

5      Attorney‐General v Prince & Gardner [1998] 1 NZLR 262 at 267; and Couch v Attorney-General

[2008] NZSC 45; [2008] 3 NZLR 725 at [33].

(a)Its application was filed less than a month after discovery and inspection was completed, because it was only then that the evidential issues with Bullocks’ claim against it became clear. MOVe also put Bullocks on notice of a potential summary judgment or strike out application one week before it was filed;

(b)the merits of the application for summary judgment are strong. MOVe has put forward compelling evidence to show why it cannot be liable to TNL in respect of the same damage TNL now seeks to recover from Bullocks — that is the demurrage and detention fees that were entirely unrelated to MOVe’s action or inaction;

(c)any delay has not caused prejudice to Bullocks. The trial is not scheduled to commence until 23 February 2026, and the close of pleadings date is not until 1 August 2025, meaning that this application will not unduly interfere with trial preparation.

Summary judgment

[26]   Mr Pietras submits that Bullocks’ third-party claim cannot succeed because there is no evidential basis to support its claim that MOVe is liable for the unpaid balance of the demurrage and detention fees.

[27]   Mr Pietras submits that while TNL and Bullocks discussed quantum of liability between them (in the end without settling), MOVe paid its calculated share of the demurrage and detention fees to TNL on 9 June 2023. He accepts that MOVe’s settlement with TNL is not binding on Bullocks but submits this does not change the fact that MOVe has fully discharged its liability to TNL. Bullocks had the opportunity to challenge TNL’s calculations or explain why the amount paid by MOVe was insufficient to discharge its liability for the demurrage and detention charges but has never made any attempt to do so.

[28]   Mr Pietras submits that in the face of cogent evidence from MOVe, Bullocks has not filed any cogent evidence of its own to show that its third-party claim can succeed. He submits that for MOVe’s claim for equitable contribution to succeed, it

would need to put forward specific evidence of a common or shared obligation as between Bullocks and MOVe that could give rise to common liabilities to TNL. In other words, MOVe must show that the nature and extent of the damages are the same or indivisible.

[29]   Mr Pietras separates the damages into two categories, A and B, as set out diagrammatically at paragraph [51] of his written submissions, submitting that the two categories of damages are conceptually different with:

(a)Category A — damages for which both Bullocks and MOVe are liable to TNL, being those damages which arise from MOVe failing to transport 10 containers per week as it had contracted to do; and

(b)Category B — damages for which only Bullocks can be liable to TNL, being damages which arise from the global shipping environment and Bullocks’ Chinese customers’ decision to ship all containers in a short space of time rather than as staggered deliveries.

[30]   Mr Pietras submits that the amount MOVe is liable for is the $228,954.52, being Category A damages, as this is the amount caused by MOVe’s failure. Because this sum has been paid to TNL, MOVe’s liabilities have been discharged and by paying its calculated share, MOVe has reduced Bullocks’ contractual liability for the total amount of demurrage and detention charges (from $529,123.16 to $301,168.64) and this has also reduced the quantum of penalty interest for which Bullocks will be liable to TNL.

[31]   For these reasons Mr Pietras submits Bullock’s third-party claim cannot succeed on the evidence and MOVe should have summary judgment entered in its favour.

Strike out

[32]   Mr Pietras submits that for Bullocks’ contribution claim to succeed, it must show that Bullocks and MOVe are both liable to TNL for the “same damages”. This means it must show they have a shared liability.

[33]   Mr Pietras relies on TNL’s email to MOVe on 26 April 2022 as evidence that TNL considered MOVe liable for breach of contract as, in that email, TNL specifically alleged that MOVe breached its contractual obligation to transport at least 10 containers per week.

[34]Mr Pietras submits that:

(a)Bullocks’ amended statement of claim against MOVe is a claim based on negligence, alleging that MOVe owed a duty of care to Bullocks to carry out its work (as TNL’s subcontractor) to the standard of a company whose core business involved the unloading, unpacking and transportation of shipping containers, and in particular that MOVe owed Bullocks a duty of care to avoid the accrual of demurrage and detention charges; and

(b)the amended statement of claim also pleads MOVe failed to:

(i)deal with the first batch of containers promptly and efficiently, meaning that the following batches also became backlogged and accrued large amounts of demurrage and detention fees; and

(ii)report to TNL at an early stage that it was unable to cope with the increased volume of containers, meaning that this information was not passed on to Bullocks so it could make other arrangements for the containers and thereby mitigate the loss.

(c)Bullocks’ claim for equitable contribution cannot succeed because the nature and extent of damages claimed against Bullocks and MOVe are conceptually distinct. From the outset, MOVe has been liable for its failure to “unload and transport at least 10 containers per week”. In contrast, TNL’s claim against Bullocks is for the charges that were incurred independently of MOVe’s involvement with the project, that

is, the global shipping environment and the decision of Bullocks’ Chinese customer to ship all the containers at the same time.

[35]   Having regard to the claims which appear to be pleaded as set out at [34] of this judgment, Mr Pietras submits the pleadings are inadequate to an extent that they should be struck out for the following reasons:

(a)the amended statement of claim does not plead how or why MOVe  should be liable for the Category B damages. Despite Bullocks being on notice of the inadequacy of the pleadings, the amended pleadings remain vague and unparticularised, making it difficult for MOVe to understand the nature of the claim against it which may breach r 5.26 of the High Court Rules 2016;

(b)the amended statement of claim does not specify a cause of action and appears to conflate the concepts of negligence and equitable contribution;

(c)the amended statement of claim does not plead the required elements of equitable contribution, namely that:

(i)MOVe owed a duty of care to TNL;

(ii)that it breached the duty of care; and as a result of that breach, it caused or contributed to the same loss as TNL has sought to recover from Bullocks relying on the decision in Marlborough District Council v Altimarloch Joint Venture Ltd.6

(d)on the issue of causation, Bullocks would also need to plead, with sufficient particularity, how MOVe’s failure to transport the

10 containers per week caused or contributed to the Category B damages.

6      Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2 NZLR 726, citing Burke v LFOT Pty Ltd [2002] HCA 17 at [15] and [16].

Submissions for Bullocks

Leave to bring summary judgment application

[36]   Mr Langstone, for Bullocks, submits that MOVe delayed filing this application for around 10 months. He notes that while MOVe submits Bullocks claim against it was perfunctory and failed to plead any cause of action, it still took such time to file a strike out or summary judgment application.

[37]   Mr Langstone submits that the settlement reached between TNL and MOVe was agreed on 9 June 2023, therefore if MOVe thought that the settlement with TNL provided grounds to strike out the claim, it was aware of this 8 months prior to MOVe becoming involved in proceedings. He submits that while MOVe argues it could only make this application once an evidential weakness became apparent, this is not consistent with its argument for bringing the application at a later stage, which hinges on the settlement with TNL and therefore the delay has not been satisfactorily explained and leave should not be granted.

Summary judgment

[38]   Mr Langstone alleges that the negligence of MOVe caused the demurrage and detention charges to be incurred and that while this is denied by MOVe, it is an issue of causation which is not suitably resolved in a summary judgment.

[39]   Mr Langstone rejects MOVe’s assertion that there is no evidential basis for Bullocks’ claim, but nevertheless submits that this demonstrates a misapprehension on the part of MOVe as to the onus in this application, as it is not for Bullocks to show it has an “evidential basis” for its claim at the summary judgment stage.

[40]   Mr Langstone submits that the division made by MOVe between demurrage and detention fees caused by each party (Category A and Category B damages) is not justified, as the total sum of $529,123.16 was billed to TNL. He submits:

(a)There are not two categories, but one category for demurrage and detention fees.

(b)the fault in MOVe’s argument is that it relies entirely on TNL’s calculation of what MOVe (and consequently Bullocks) should pay out of the total of the fees charged to TNL. That does not make the apportionment correct;

(c)Bullocks has never accepted TNL’s split of the fees and he points to an email from Bullocks to TNL dated 9 June 2022 as evidence of Bullock’s disputing liability for the demurrage and detention fees.

(d)MOVe having settled with TNL does not prevent Bullocks from making a claim against it, and this is particularly so given that Bullocks was not a party to the settlement and had no knowledge of it until more than a year after the settlement was agreed.

Strike out

[41]   Mr Langstone submits that on the facts, there is a clear cause of action in negligence available against MOVe. He submits that this is clearly a claim in tort, and not one for equitable relief, as Mr Pietras suggests in his submissions.

[42]   In response to MOVe’s criticisms of the pleadings in the amended statement of claim, Mr Langstone submits:

(a)the amended statement of claim makes it clear there is a tortious claim against MOVe — Bullocks says that because MOVe’s breach of duty of care was owed, demurrage and detention fees were incurred when they ought not to have been;

(b)the two categories of damages (Category A and Category B) postulated by MOVe as being “conceptually distinct” is unjustified;

(c)the settlement between TNL and MOVe does not mean that was the full extent of MOVe’s liability;

(d)the settlement seemingly only occurred because of the similarity of amounts owed back and forth between TNL and MOVe ($233,100.44 plus GST compared with $217,408 plus GST).

[43]For these reasons, Mr Langstone submits the application should fail.

Analysis

[44]   In my view MOVe should be granted leave to bring the application for summary judgment, however the application for summary judgment on Bullocks’ claim against it as a third party should be dismissed. Additionally, the application for strike-out of Bullocks’ claim against it as a third party should be dismissed.

[45]The reasons for my views are as follows:

Leave

[46]   MOVe’s basis for the summary judgment application is reasonably arguable, and given the trial is not scheduled to commence until 23 February 2026 and the close of pleadings date is not until 1 August 2025, the delay has not caused any material prejudice to Bullocks. The application will not unduly interfere with the trial preparation and it is in the interests of justice that the summary judgment application be heard and determined.

Summary judgment

[47]   I do not accept Mr Pietra’s separation of demurrage and detention charges charged to TNL into the two categories, Category A and Category B, and the assertion that they are conceptually distinct. TNL was charged one amount for the demurrage and detention charges, and there were no separate charges in respect of demurrage and detention relating to MOVe or Bullocks’ actions.

[48]   While MOVe and TNL settled claims between them, that settlement is not binding on Bullocks, and the amount paid (by way of set-off) by MOVe in settlement does not necessarily mean that that is the extent of its liability in respect of the demurrage and detention charges. It is open to Bullocks to bring a claim against MOVe

seeking damages for the amount of the claims that Bullocks allege were caused by MOVe’s breach of its duty of care to Bullocks, and this claim should be determined at trial. There will no doubt be issues of causation and quantification of damages to be determined which cannot be resolved in the summary judgment context.

[49]   Accordingly, MOVe has not demonstrated that Bullocks’ cause of action against it under the third party claim cannot succeed, and therefore summary judgment should not be granted.

Strike out

[50]   Bullocks amended statement of claim clearly discloses a cause of action in negligence, alleging that:

(a)MOVe was obliged to carry out the work of moving the containers (as TNL’s sub-contractor) to the standard of a company whose core business involved the unloading, unpacking and transportation of shipping containers and that particular MOVe owed a duty of care to Bullocks to avoid the accrual of demurrage and detention charges; and

(b)MOVe breached that duty of care causing loss to Bullocks.

[51]   Issues of causation will no doubt arise, and will need to be dealt with at trial, but the absence of evidence in respect of causation in the pleading does not justify striking out Bullocks’ statement of claim. MOVe could have applied for a more explicit statement of claim in reliance on r 5.26 but has not done so.

Orders

[52]I make the following orders:

(a)MOVe is granted leave to bring its application for summary judgment against Bullocks;

(b)MOVe’s application for summary judgment in respect of Bullocks’ third-party claim is dismissed;

(c)MOVe’s application to strike out Bullocks’ third-party claim against it is dismissed;

(d)each party has had some measure of success, MOVe succeeding in its application for leave to bring the application for summary judgment out of time, and Bullocks’ succeeding in defending MOVe’s applications or defendant’s summary judgment and strike-out;

(e)in accordance with the usual rule where a summary judgment application is dismissed, costs are reserved.

…………………………….. Associate Judge Taylor