Tournament Parking Limited v Get Smart Group Limited HC Wellington CIV 2008-485-908

[2008] NZHC 2542

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-908

BETWEEN  TOURNAMENT PARKING LIMITED Plaintiff

ANDGET SMART GROUP LIMITED Defendant

Hearing:         11 August 2008

Appearances: B.H. Dickey - Plaintiff

P.R.W. Chisnall - Defendant

Judgment:      29 August 2008 at 3.30 pm

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by the Registrar on 29 August  2008 at

3.30 p.m. pursuant to r 540(4) of the High Court Rules 1985.

Solicitors:           Meredith Connell, Solicitors, PO Box 2213, Auckland

Gibson Sheat, Lawyers, PO Box 2966, Wellington

TOURNAMENT PARKING LIMITED V GET SMART GROUP LIMITED HC WN CIV 2008-485-908 29

August 2008

[1]      The plaintiff has applied for summary judgment against the defendant in these proceedings.  This application is opposed by the defendant.

[2]      The proceeding concerns a contract for lease of a commercial car park at Bute Street, Te Aro, Wellington (“the car park”).  The plaintiff contends first that it has an enforceable contract to lease the car park from the defendant and secondly that the defendant breached this contract by failing to provide vacant possession on the commencement date of the lease.

[3]      The  plaintiff  brought  these  proceedings  on  30  April  2008  and  sought summary judgment either for specific performance of the lease contract or damages for breach of that contract and loss of profits.  The damages sought, as I understand it, are $321,721.44 representing loss of profits over the term of the contract and costs.

Preliminary Point

[4]      At the hearing of this matter a preliminary point arose.  This related to what is said to be the late filing of a further affidavit dated 5 August 2008 of Adam Creswell Benn (“Mr Benn”) a director of the defendant in support of the defendant’s opposition to the summary judgment application.

[5]      This further affidavit sworn and filed on 5 August 2008 purported to address one point made in the affidavit of James Pierce Brown (“Mr Brown”) the director of the plaintiff sworn 27 April 2008 in support of the summary judgment application.

[6]      On 6 June 2008 Mr Benn had filed an earlier affidavit in opposition to the summary judgment application but his 1 page 5 August 2008 affidavit was provided to clarify and address one particular point that Mr Benn states he “thought was obvious from my previous affidavit”.

[7]      Before me counsel for the plaintiff contended that as this further 5 August

2008 affidavit from Mr Benn was filed late, it did not comply with the rules and it

allowed no time for a further response from the plaintiff.   Accordingly counsel argued it should not be read or considered in the hearing of this summary judgment application.

[8]      In considering this issue, it is useful to bear in mind the comments of Hansen J. in Nelson Life Care Centre Limited v Samson (1995) 8 PRNZ 376.  There a similar situation to the present arose and he stated (at page 382):

“…given the very frailties of human nature, it is inevitable that on occasions both plaintiffs and defendants, or their advisers, will, for some reason, not place relevant material going to the heart of whether or not summary judgment should be granted before the Court in the initial affidavit.  It would almost make a mockery of the procedure if too rigid an application of the Rules led to that situation.  It is a matter that can be readily and properly controlled by awards of costs, but it is important that all relevant material should be placed before the Court to enable justice to be done between the parties.  Furthermore, I take the view of the rules that they do not prohibit the filing of such further affidavits.”

[9]      That said, and having heard submissions from counsel for the plaintiff and counsel for the defendant I took the view that this further affidavit from Mr Benn although filed somewhat late merely clarified further matters contained in his earlier affidavit and should be read.  As Hansen J. had noted in Nelson Life Care Centre Limited, it was also important in this case that the Court had before it all available evidence to properly consider the summary judgment application.

[10]     For these reasons I ruled that this second affidavit of Mr Benn, sworn 5

August 2008 was to be read  and  taken  into  account  in  considering  the  present summary judgment application.

[11]     The plaintiff is a New Zealand-wide car park operating company.  It contends that since mid-2007 it had been interested in acquiring the car park located as it is in central Wellington, as a strategic addition to its portfolio of Wellington car parks.

[12]     Apparently it had made an unsuccessful tender bid to buy the car park in June

2007 when the property was put up for tender by the then owners, J & M Chan Limited.   At the tender process, it was the defendant who was successful, and it became the purchaser of the car park property.

[13]     The car park at the time was the subject of a lease dated 26 March 2007 (“the Wilson lease”) to Wilson Parking New Zealand Limited (“Wilson”) which was due to expire in March 2008.  Under the Wilson lease Wilson as lessee had a first right of

refusal.  That first right of refusal clause stated:

“5.	FIRST RIGHT OF	At the end of the term the tenant will (be
REFUSAL	provided with a copy, and) have the right to
match any bona fide offer to operate the
car park.”

[14]     As the Wilson lease was approaching its initial expiry date, some time in February 2008 it seems that James Brown (“Mr Brown”) a director of the plaintiff and Adam Benn (“Mr Benn”) a director of the defendant had discussions relating to a potential lease by the defendant of the car park. The plaintiff claims that Mr Benn suggested that the defendant was prepared to lease the car park to the plaintiff from March or April 2008 at an annual rental of $128,000.00 plus GST and Mr Brown indicated that this was acceptable.

[15]     Certain events which are said to be crucial occurred around this time between

27 and 29 February 2008.   It is important to set out particulars of those events in some detail.

[16]     First, a significant meeting occurred early on 27 February 2008.  As to this, in support of its opposition to the present summary judgment application the defendant has filed an affidavit dated 6 June 2008 of Joseph Phillip Rene Griffin (“Mr Griffin”) the Chief Executive Officer of Wilson.   That affidavit refers to the meeting in

question.  This was a meeting which Mr Griffin had with Mr Brown and a Mr Simon

Roundtree (both directors of the plaintiff) at a café in Albert Street, Auckland on 27

February  2008  at  10.00  am  (“the  coffee  meeting”).    Ms  Simone  Edwards,  Mr

Griffin’s personal assistant also attended the meeting.

[17]     At  the  coffee  meeting  Mr  Griffin  confirms  (at  paras.  2,  3  and  4  of  his affidavit) that:

“2.I met with James Brown and Simon Roundtree both directors of Tournament at a café in the bottom of the PWC Building on lower Albert Street, Auckland on 27 February 2008 at 10.00 am.   Simone Edwards, my Personal Assistant, also attended at the meeting.

3.James Brown advised that Tournament was considering leasing the Bute Street Car Park from Get Smart and that he was aware that Wilson had a first right of refusal as he had seen Wilson’s lease. Tournament had apparently been looking at purchasing the property at around the same time that Get Smart purchased the property.

4.James  Brown  asked  me  whether   Wilson  was  prepared  to  be commercial in respect of re-leasing the property.   I advised that Wilson would make a commercial offer however if I saw an offer with Tournament’s name on it Wilson would consider matching it.”

[18]     The plaintiff does acknowledge that later that day, 27 February 2008  around

12.00 pm Mr Benn, director of the defendant, had a telephone conversation with Mr Brown,  director  of  the  plaintiff.    In  that  conversation  it  seems  that  Mr  Benn confirmed that any offer to lease the car park from the plaintiff would first have to be put to Wilson to see if it would match the offer in exercise of its first right of refusal under the existing Wilson lease.

[19]     At 6.00 pm that night, Mr Benn apparently again called Mr Brown to ask Mr Brown to forward the plaintiff’s proposed offer to lease the car park so it could then be passed to Wilson for its consideration.

[20]     Shortly thereafter, at 7.14 pm Mr Brown emailed Mr Benn attaching a copy of the plaintiff’s lease offer on the terms that had been discussed which were:

a)        An annual rental of $128,000.00 plus GST. b) A commencement date of 1 March 2008.

c)        A 4 year lease term with a right of renewal.

d)An obligation on the lessor to pay all rates and other outgoings on the property.

[21]     A copy of that email is attached at exhibit “E” of Mr Brown’s affidavit dated

27 April 2008.  In the email Mr Brown states:

“Adam

As discussed see attached agreement.  Wilson’s will do this deal so you owe me a bottle of rum for increasing your rental by $41K.

Regards

James”

(emphasis added)

[22]     The following day, 28 February 2008 at 9.38 am Mr Benn forwarded this copy lease to Wilson having first deleted the references to “Tournament Parking Limited” as lessee.

[23]     It seems that a discussion may have followed between Mr Benn and a Wilson representative, Gareth Phillips (“Mr Phillips”) in which Mr Phillips indicated that Wilson was unlikely to match that offer the defendant had received.

[24]     The plaintiff alleges however that much more than this occurred.  During the afternoon of 28 February 2008 the plaintiff says Mr Benn called Mr Brown and informed him that Wilson had chosen not to exercise its right of first refusal and that

the defendant therefore was free to execute the lease with the plaintiff.   In that conversation the plaintiff maintains the parties agreed to a final lease and this would first, push the commencement date back from 1 March 2008 to 1 April 2008 and secondly include a different formula for the payment of outgoings.   All this is strongly disputed by the defendant however.

[25]     In particular, at paragraphs [5], [6] and [7] of his affidavit dated 5 August

2008 Mr Benn states:

“5.      At the stage of the alleged telephone conversation of 28 February

2007,  I  was  clear  that  Wilson  had  not  declined  its  right  of  first refusal.  My first Affidavit addresses these issues, in particular, as I confirmed that GSGL had at no time received confirmation from Wilson that Wilson had turned down their right of first refusal.

5.While  it  is  possible  that  I  may  have  indicated  in  a  telephone conversation to Mr Brown that I did not think it was likely that Wilson would take up its first right of refusal, I did not say to Mr Brown at anytime that Wilson had declined its first right of refusal.

6.        This position is also confirmed by Wilson’s letter to GSGL dated 29

February 2008 and subsequent the correspondence.   I would never have  said  to  Mr  Brown  that  Wilson  had  relinquished  its  option without having had confirmation in writing from Wilson.”

[26]     Events moved on and then at 10.38 am on 29 February 2008, Mr Benn faxed

Mr Brown a copy of the lease offer with the plaintiff being a lease of the car park for

4 years from 1 April 2008 at an annual rental of $128,000.00 plus GST.   This document was signed on behalf of the defendant with the alteration to the outgoings clause made and all pages were initialled.  There was an accompanying note to that fax which stated that Mr Benn was “looking forward to working together” with Mr Brown.   The basis for and the background to this communication is again hotly disputed however.

[27]     On these aspects Mr Benn at paragraphs 25 and 26 of his 5 June 2008 affidavit states:

“New Lease to Wilson

25.On 29 February 2008 to keep the ball rolling, and with the pressure of the pending existing lease expiry due on 1 March 2008, I sent to Tournament by facsimile, the proposed Tournament lease being exhibits “G” and “H” of James Brown’s affidavit.   As I thought it unlikely that Wilson was going to exercise its option, I noted on the fax that I  required  signatures  and  that  I  was  looking  forward  to working with James Brown in the future.  However, in my mind I am clear there was no binding lease with Tournament as Wilson had yet to confirm its refusal.

26.Accordingly,   when   Tournament   then   forwarded   back   to   me Tournament’s   signed   proposed   lease,   and   in   accordance   with Wilson’s instructions of wishing to see a bonafide document with a proposed new operator, I then on-forwarded Tournament’s proposed lease to Wilson by way of an email dated 29 February 2008.  A true copy of this email is annexed hereto and marked “AB-4”.

[28]     Mr Brown then signed a copy of the lease on behalf of the plaintiff as lessee and sent it back to Mr Benn by email at 1.08 pm that day, 29 February 2008.

[29]     Also on 29 February 2008, Mr Phillips wrote a letter to Mr Benn making an offer on behalf of Wilson to lease the car park on less favourable terms (a rental of

$91,000 per annum) than the offer from the plaintiff.  In addition, this letter asked for a complete copy of the competing offer.   Later that same afternoon, Mr Phillips called Mr Benn and left a message on his answerphone to the effect that he was awaiting instructions from Perth and that Wilson was likely to exercise its right of first refusal.

[30]     Subsequently on either 3 or 4 March 2008 Wilson sent to the defendant a copy of its signed offer at the $128,000.00 rental figure.  On 6 March 2008 Mr Benn called Mr Brown to inform him that Wilson had exercised its right of renewal.  The plaintiff alleges that in this conversation Mr. Benn went on to say that the defendant “would not be honouring its lease with the plaintiff”.

[31]     Mr Brown says he replied during that conversation and in a fax the following day that the plaintiff would seek to enforce its rights under what it maintained was a binding unconditional lease.

[32]     Emails and faxes between the parties ensued over the next 3 weeks.

[33]     On what the plaintiff says was the commencement date of its lease, 1 April

2008, the plaintiff attempted to enter the car park but entry was blocked by security guards posted there.  Finally, a cheque was sent by the plaintiff representing the first monthly rental payment under the lease but this was returned by the defendant’s solicitors.

Counsel’s Argument and My Decision

[34]     In seeking summary judgment the plaintiff relies upon r 136(1) High Court

Rules which states:

“The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a claim in the statement of claim or to a particular part of any such claim.”

[35]     The principles for a summary judgment application are well settled.   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 to satisfy the Court that the defendant has no defence to the claim. 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:

Jowada  Holdings  Ltd  v  Cullen  Investments  Ltd    CA248/02,  5  June  2003  and 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).

[36]     Thus while it is for the plaintiff to show that its case is unanswerable and that the defendant has no arguable defence, the Court ought to assess any defence or a narrative presented by the defendant in a “robust and realistic” manner – Bilbie Dymock Corporation v Patel (1987) 1 PRNZ 84 (CA) at 85.  The Court may take a robust and realistic approach where the facts warrant it.

[37]     But as McGechan on Procedure notes at para. HR136.08:

“The Court does not have to be convinced of the truth of the statements made by the defendant; so long as there are unequivocal statements which amount to an arguable defence, that will generally be sufficient to justify a refusal of the  summary  judgment  application:    Local  Courier  Service  Ltd  v  Kesha (1995) 8 PRNZ 690”.

[38]     Relevant also here is r 137 High Court Rules which states:

“Summary Judgment on Liability

The Court may give judgment on the issue of liability, and direct a trial of the issue of amount (at such time and place as it thinks fit), if the party applying for summary judgment satisfies the Court that the only issue to be tried is one as to the amount claimed.”

[39]     Under this rule the plaintiff does not need to establish the actual loss suffered. All that is necessary is that it shows some loss justifying the entry of judgment against the defendant – Kelly v Edge Computers Limited, High Court Dunedin, CP63/95, 5 March 1997 Master Venning.   An order was made under this r 137

entering  judgment  as  to  liability  only  in  Attorney  General  v  Rakiura  Holdings Limited (1986) 1 PRNZ 12 where, although liability was plain and in the Judge’s view ought not to be litigated further, quantum was not plain there being questions of mitigation to be resolved.

[40]     In the present case, the essential position advanced by the plaintiff is that it had a concluded unconditional contract with the defendant to lease the car park and the defendant has defaulted under that contract.  In particular, the plaintiff rejects any suggestion from the defendant that any such lease agreement was subject to an outstanding condition precedent that Wilson would need first to decline to exercise its right of first refusal.

[41]     The plaintiff’s argument proceeds in one of two ways.

[42]    The first which counsel for the plaintiff describes as “the counter offer scenario” begins with the contention that Mr Brown made an offer to Mr Benn on

27 February 2008 which was unconditional on its terms.   The following day Mr Benn told Mr Brown that Wilson had declined to exercise its right of first refusal and that the parties were free to execute the lease.

[43]     Mr Benn then sent a copy of the lease back to Mr Brown at 10.38 am on 29

February 2008 with amendments to the terms annotated on Mr Brown’s offer.  As such, this constituted a counter offer.  Because by this stage, it is alleged Mr Brown had  been  told  that  Wilson  had  declined  to  exercise its  right  of  first  refusal  no condition could be implied into the counter offer.

[44]     This counter offer was then accepted when Mr Brown signed the contract and returned it to Mr Benn at 1.08 pm on 29 February 2008.

[45]     The second argument which is in the alternative advanced for the plaintiff is referred to as “the Offer Scenario”.  This proceeds on the basis that the offer of a lease sent by Mr Brown to Mr Benn on 27 February 2008 was unconditional on its terms but subject to Wilson declining to exercise its right of first refusal.

[46]     The argument continues that on the following day, 28 February 2008, Mr Benn told Mr Brown that Wilson had declined to exercise its right of first refusal and that the parties were free to execute the lease.   This communication, it is said, fulfilled any condition precedent that could be implied.  As such the plaintiff is not affected by any right Wilson may have had which is a matter to be settled between Wilson and the defendant.

[47]     It is said that the offer was accepted by Mr Benn when he signed it and returned it to Mr Brown at 10.38 am on 29 February 2008.

[48]     The plaintiff maintains that it is unnecessary for the Court to resolve the factual question whether Wilson actually declined to exercise its right of first refusal or whether it may have reserved its position.  The plaintiff contends that the evidence leads to the conclusion that Wilson actually declined to exercise its right but that it is not necessary to reach that conclusion to dispose of the present case since Mr Benn’s communication that it had done so fulfilled any condition that could otherwise have been  implied.    As  such,  the  plaintiff  says  the  defendant  has  no  fairly arguable defence.

[49]     The plaintiff argues that the failure of the defendant to perform the contract entered into, caused the plaintiff to lose expected profits from its operation of the car park.   The plaintiff thus seeks judgment and for the Court to either order specific performance or order a separate trial on quantum under r 137 High Court Rules.

[50]     In response, the defendant’s initial position is that the issues in this case relate entirely to disputed questions of fact and credibility.  As such the resolution of factual matters in this case assumes critical importance and without doubt on the established authorities, where there is a genuine conflict of evidence the summary judgment procedure is inapt.

[51]     On this, counsel for the defendant points to the following matters:

(a)Throughout the defendant was fully aware that Wilson had a right of first refusal in the Wilson lease which provided that “At the end of the

term (being 1 March 2008) Wilson as tenant will (be provided with a copy and) have the right to match any bona fide offer to operate the car park.”  This clause provides for a first right of refusal “at the end of the term” and not otherwise.  There is no absolute requirement that this right must be exercised before the end of the term of the Wilson lease.   The defendant acknowledges that it was fully aware of this provision and its terms for some time prior to the events in question here, especially as it had been intimately involved in the earlier tender process (and no doubt a due diligence exercise) in its unsuccessful attempt to buy the car park property when it was purchased by the defendant.

(b)The coffee meeting on 27 February 2008 attended by Mr Brown and Mr Roundtree, directors of the plaintiff, with Mr Griffin of Wilson, according to the unchallenged evidence of Mr Griffin made clear that so far as re-leasing the car park was concerned:

“…Wilson would make a commercial offer however if I saw an offer with Tournament’s name on it Wilson would consider matching it”.

(emphasis added)

(c)       The email from Mr Brown to Mr Benn of the defendant dated 27

April 2008 enclosing an offer to lease went on to state:

“Wilson’s will do this deal so you owe me a bottle of rum for increasing your rental by $41K.”

There seems little doubt that at this point, the plaintiff believed that Wilson would exercise their first right of refusal, and thus, through the actions of the plaintiff the defendant would achieve increased rent of $41,000.00 p.a. so therefore, somewhat flippantly, “a bottle of rum” had been earned.

(d)As to the telephone conversation between Mr Benn and Mr Brown in the  afternoon  of  28  February  2008  the  defendant  raises  a  major

dispute over the plaintiff’s  contention that Mr Benn informed Mr Brown that Wilson had chosen not to exercise its right of first refusal and the defendant therefore was free to execute the lease with the plaintiff.  The evidence before the Court from the defendant is that no such assurance or indication was given.  As I understand the position the defendant says that its evidence will show that at most Mr Benn indicated that Wilson may be unlikely to exercise its right of first refusal but this of course required final confirmation.  It is interesting to note at this point that Wilson had the right under the first refusal clause to be provided with a copy of a competing lease proposal before making its decision whether or not to match that proposal. That was also a matter of which the plaintiff it seems was fully aware.

(e)      When at 10.38 am on 29 February 2008 Mr Benn faxed to Mr Brown the signed lease offer between plaintiff and defendant the defendant maintains that all parties were fully aware that this was merely for the purpose of obtaining a signed lease offer to be later submitted to Wilson for their consideration under the right of first refusal clause. The defendant says that this was accepted throughout by the plaintiff and that at worst the “agreement” reached was subject to an implied condition that Wilson would not exercise  its  right  of  first  refusal under the Wilson lease.

(f)       So far as the emphasis placed by the plaintiff on the defendant’s faxing  of  the  signed  agreement  on  29  February  2008  with  the covering note “I look forward to working with you” is concerned, the defendant contends this comment is quite consistent with Mr Benn’s thinking at the time that Wilson might not take up its right of first refusal.

(g)      In submissions before me counsel for the plaintiff referred to the urgency sought by the defendant to have this bona fide offer signed and returned by the plaintiff.  The defendant says in response that its position is entirely consistent with its contention that it needed a bona

fide offer (which interestingly had two new terms as to rates liability in clause 3.1 and as to the rent review provision in clause 5.2) to put to Wilson for its consideration and sign off, particularly given that the Wilson lease was due to expire on 1 March 2008.

(h)The defendant maintains that it is clear here that there is an intense factual dispute.   The defendant says that Mr Benn’s first affidavit makes it abundantly clear that Wilson had not relinquished its right of first refusal and as such rebuts any allegation that Mr Benn told Mr Brown something to the contrary.   In his second affidavit Mr Benn again confirms that he denied saying to Mr Brown that Wilson had, in fact, elected not to exercise its option.

(i)Regardless of what may have been said, in any event, the defendant contends that Wilson’s option could only be waived by it and this was well known to the plaintiff throughout.  Any agreement between the plaintiff and the defendant therefore it is argued could truly be said to be conditional upon Wilson not exercising its right of first refusal. Any agreement between the defendant and the plaintiff could only proceed once Wilson had refused to take up this option and, until this event occurred, given the knowledge of the plaintiff and its own conduct the defendant argues that no binding unconditional lease agreement could be entered into between the plaintiff and the defendant here.

[52]     In considering the competing arguments advanced to the Court on behalf of the plaintiff and the defendant I need to say at the outset that in my view there is a clear and genuine conflict of evidence between the parties such that the present matter is not appropriate for summary judgment.

[53]     The evidence of Mr Benn in his affidavits sworn 5 June 2008 and 5 August

2008 states unequivocally that he did not at any time inform Mr Brown that Wilson had declined its first right of refusal.  Instead Mr Benn’s evidence is that at most he said to Mr Brown that he did not “think it was likely that Wilson would take up its

first right of refusal” but he did no more than this.  Whilst Mr Brown disputes this, clearly these are matters which can only be properly resolved at trial when a full testing of the evidence is possible.

[54]     Next,  although  from  the  defendant’s  perspective  it  may  be  seen  as unfortunate that when Mr Benn on 29 February faxed a copy of the lease offer to the plaintiff signed on behalf of the defendant he did not include a specific written condition that any agreement arising was conditional upon Wilson not exercising its first right of refusal, that is not an end of the matter here.

[55] The plaintiff’s knowledge throughout of the position concerning the first right of refusal held by its competitor Wilson under the earlier lease would lend support to an argument that any lease agreement between the plaintiff and the defendant reached on 29 February 2008 is likely to be subject to an implied condition that the first of refusal was not to be exercised. In my view there is substance in the points raised by the defendant that I have noted at para. [51] above.

[56]     Before me, however, counsel for the plaintiff criticised Mr Benn’s affidavit evidence and argued that it lacked cogency.  He went on to suggest that if Mr Benn, as an informed commercial businessman, had made a mistake when signing what the plaintiff says was the unconditional lease agreement, he is simply stuck with it.  Mr Benn’s evidence was described as just “not good enough” especially in the face of what the plaintiff suggested was the “unequivocal evidence” of Mr Brown.

[57]     With respect, I disgree.   I do not accept that, in the absence of a thorough testing by cross-examination, Mr Brown’s evidence is unequivocal.  Factual matters here in my view seem to be somewhat murky.  And whether or not Mr Benn may have made “a mistake” (and any consequences that might follow) in my view are matters that need to be properly tested at trial when all the evidence can be closely scrutinised.

[58]     And,  I take  the  view  that  there  is  a  genuine  and  substantial  conflict  of evidence between that provided here by Mr Benn and that of Mr Brown and it follows that there are real questions to be tried in this case.  As I see the position, the

plaintiff has been unable to satisfy the Court that the defendant has no fairly arguable defence here.

[59]     Although  this  effectively  disposes  of  the  present  summary  judgment application, I note in passing that there is  a reasonable  argument that a further defence of mistake under s. 6(1)(a) Contractual Mistakes Act 1977 advanced for the defendant  may  well  be  alive  and  cannot  be  eliminated  at  this  early  summary judgment stage.

[60]     On this, as I understand it, the plaintiff relies upon an allegation that Mr Benn in fact said that Wilson had relinquished its right of first refusal and that both Mr Benn and Mr Brown therefore were mistaken as Wilson had not relinquished this right.  According to the defendant this constitutes a mistake for which the defendant is able to seek relief pursuant to s. 7(3)(b) Contractual Mistakes Act 1977 by cancelling the alleged agreement between the defendant and the plaintiff.   In my view these contentions are at least arguable and provide an additional reason why summary judgment should be refused here.

[61]     Finally, before me the defendant endeavoured to argue that the conduct and knowledge of Mr Brown for the plaintiffs, in particular at the coffee meeting, may give rise to a possible defence to the defendants pursuant to s. 9 Fair Trading Act

1986.  The defendant maintains that in such circumstances it may be entitled to seek relief pursuant to s. 43 Fair Trading Act 1986 which could include avoiding the alleged agreement  ab initio.

[62]     In response the plaintiff contends that this Fair Trading Act 1986 defence is ill conceived.  Counsel argues this is because he says the plaintiff has never made any misrepresentation or conducted itself in a misleading or deceptive way.

[63]     On the state of the evidence presently before the Court, it may be that there is some substance in this argument advanced for the plaintiff.   Given my findings above, however, I need say nothing more on this defence at the present point.

Conclusion

[64]     For the reasons I have outlined above it will be apparent that the plaintiff’s summary judgment application fails.

[65]     The application is dismissed.

[66]     The defendant has been successful in opposing this application and I see no reason why costs should not follow the event in the normal way.  Costs are therefore awarded in favour of the defendant against the plaintiff on a Category 2B basis together with disbursements (if any) as approved by the Registrar.

‘Associate Judge D.I. Gendall’