Vector Limited v Sunverge Energy Incorporated - [2018] NZHC 1936

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2980

[2018] NZHC 1936

BETWEEN
VECTOR LIMITED

Plaintiff

AND

SUNVERGE ENERGY, INCORPORATED

Defendant

Hearing: 3 July 2018

Appearances:

N F Flanagan and T C Clark for the Plaintiff S S Cook and L C Sizer for the Defendant

Judgment:

31 July 2018

Reissued:

9 August 2018

(RE-ISSUED) RESERVED JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 31 July 2018 at 3.30pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel: Meredith Connell, Auckland Buddle Findlay, Auckland

VECTOR LTD v SUNVERGE ENERGY, INCORPORATED [2018] NZHC 1936 [31 July 2018]

[1] On 31 July 2018 I gave a reserved judgment, on a protest by the defendant to the New Zealand jurisdiction. The reserved judgment was issued confidentially to counsel only at that time, to enable them to identify any confidential information that might be contained in the draft judgment that should be redacted, to ensure compliance with certain confidentiality orders that had been made on 22 June 2018 for the purpose of protection of commercially sensitive information. Counsel have since filed memoranda on that issue. I now re-issue the judgment on a "public" basis (with some passages redacted to ensure compliance with the 22 June 2018 confidentiality orders).

[2] The plaintiff (Vector) sues the defendant (Sunverge) for the supply of allegedly defective solar energy storage systems (Sunverge Units) manufactured in the United States and sold by Sunverge to Vector for installation at the homes of Vector's customers in New Zealand.

[3] Sunverge is an American company, registered in Delaware, but carrying on business in California. It says that the dispute should be heard and determined in California, and it has filed a protest to the New Zealand jurisdiction. Vector applies to set aside Sunverge's protest to the New Zealand jurisdiction.

Background

[4] In or about March 2013, the parties entered into an agreement (the Umbrella Agreement) setting out the relevant terms on which Sunverge would enter into contracts to sell Sunverge Units to Vector.

[5] Each contract entered into pursuant to the Umbrella Agreement would incorporate the General Conditions at Schedule 2 to the Umbrella Agreement, and the Particular Conditions at Schedule 1. The General Conditions would apply unless an alternate instruction was given in the Particular Conditions. To the extent that certain clauses and subclauses of the General Conditions and the Particular Conditions were not applicable to a certain contract job, those clauses would be deemed not to apply to that contract job.

[6] The Umbrella Agreement included warranties by Sunverge that the goods would remain fit for purpose for a period of 12 and one half years,1 and that the goods would be of merchantable quality and free from defects in design, material and workmanship.2

[7] The General Conditions in the Umbrella Agreement (ie the Schedule 2 provisions) provided that if Sunverge breached either of those warranties, Vector would be entitled to reject…

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: [2018] NZHC 1936
Decision Date: 31 July 2018

CaseChat Overview and Summary

This case involves a dispute between Vector Limited, a New Zealand company, and Sunverge Energy Incorporated, an American company, over the supply of allegedly defective solar energy storage systems. The High Court of New Zealand was required to decide whether it should assume jurisdiction over the dispute, as Sunverge argued that the case should be heard in California. The court considered factors such as the governing law, the location of the parties and witnesses, and the convenience and expense of proceeding in each jurisdiction. The court found that New Zealand was the most appropriate forum for the trial, as the products in question were supplied in and used in New Zealand, and the majority of the evidence and witnesses were located in New Zealand. The court also noted that the parties had agreed to submit to the non-exclusive jurisdiction of the New Zealand Courts and that New Zealand law governed the Umbrella Agreement. The court set aside Sunverge's protest to the New Zealand jurisdiction and ordered Sunverge to file and serve its statement of defence within 30 working days of the judgment.

Orders