Transform Minerals Limited v Rooney Earthmoving Limited HC Christchurch CIV 2010-409-714

[2010] NZHC 2350

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-000714

BETWEEN  TRANSFORM MINERALS LIMITED Applicant

ANDROONEY EARTHMOVING LIMITED Respondent

Hearing:         22 July and 20 September 2010

Counsel:         N S Elsmore for Applicant

R S Brown for Respondent

Judgment:      20 September 2010

JUDGMENT OF FOGARTY J

[1]      The  respondent,  Rooney  Earthmoving  Limited  (Rooney),  has  made  a statutory demand of Transform Minerals Limited (Transform) for the payment of

$246,551.44.    Transform has applied under s 290 of the Companies Act 1993 to set aside the payment, disputing the debt.  The standard of whether or not the application should be set aside is a judgment by this Court as to whether the debt is the subject of a substantial dispute, see s 291 of the Companies Act.  For some time I have been examining that issue.

[2]      Affidavits have been exchanged between the parties.   The position I have reached finally today is that there is a substantial dispute between the parties.  I am not going to define that dispute in this judgment because I think that the normal principles should apply, namely, that the parties should define the dispute by way of pleadings.   There is a danger that if I endeavour to define the dispute I might

inappropriately narrow it.

TRANSFORM MINERALS LIMITED  V ROONEY EARTHMOVING LIMITED  HC CHCH CIV 2010-409-

000714  20 September 2010

[3]      Because of the amount of work that has been done by the parties in the context of this dispute of statutory demand I am satisfied however that this case can and should be given a prompt hearing.  Mr Brown for Rooney has advised me that Mr NRW Davidson QC has been instructed for the respondent.  Therefore Mr Brown is not in a position to confirm fixture dates.  I can offer two days on either 15/16, or

18/19, or 25/26 November.   Those dates are alternatives.   They are achieved by pushing other work into the surrounding days.  They are not treated as an availability of six days because that simply is not the case.

[4]      Both counsel before me here today are confident this case can be disposed of within two days.   If at any stage from now on there is any difference of opinion between counsel, and/or from Mr Davidson, then I would require counsel taking a difference of opinion to immediately apply for a telephone conference with me.

[5]      I am quite ready to agree to read in advance materials if that, in the judgment of counsel, would be appropriate in order to ensure that the case is fully heard and argued within two days.    It seems to me that we should try to focus the two day hearing on the necessary cross-examination of witnesses and on legal argument.  To that end the parties might well agree a set of materials that I should read in advance such as some of the affidavits or some particular parts of the affidavits that have already been filed.

[6]      I have found this morning that I have lost a grip on details on some of the earlier affidavits.  But, on the other hand, I could, I am pretty sure, come up to speed with the content of those affidavits in short order.

[7]      There will need to be pleadings.   I would prefer the parties per counsel to agree in the next few days a timetable for statement of claim and statement of defence.  I have indicated in oral argument that I think it is important for Rooney to clearly enunciate whether the change in charging is going to be based on a prior agreement of variation of contract or on subsequent conduct, and, if the latter, whether that is to be based on common law principles or equity.  I am envisaging that Rooney will probably plead its case in alternatives.

[8]      Accordingly, my conclusion is that the application to set aside the statutory demand is granted but against the assurances I have received from Mr Elsmore, in the presence of Mr Lundy, who is in Court, that Transform will accept that there is to be an urgent hearing of this case along the lines that I have just indicated.

[9]      Costs are reserved on that application.

[10]     I will ask counsel to report to the Court by the end of this week as to which of these three alternative dates they can agree upon, or if they cannot agree upon them, there will need to be a telephone conference with me.

[11]     I record that the parties agree that I should continue.  I think that is the most efficient way of dealing with the case.  I would be far from sure that the case could be heard within two days if it involved bringing in a Judge with no previous acquaintance with the case as I have now spent the equivalent of at least two Court days with the materials in and out of Court.

[Judge checks with counsel if there are any other matters that need to be added to the judgment – counsel indicate there is nothing else.]

Solicitors:

Layburn Hodgins, Christchurch, for Applicant (Counsel Acting: N S Elsmore) Meares Williams, Christchurch, for Respondent (Counsel Acting: R S Brown)