Waterco (NZ) Ltd v Simpson - [2012] NZHC 2361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2863 [2012 NZHC 2361

UNDER Part 12 of the High Court Rules

IN THE MATTER OF an application for summary judgment

BETWEEN WATERCO (NZ) LIMITED Plaintiff

ANDDAVID ALAN SIMPSON First Defendant

ANDCOURTNEY JAMES RYAN Second Defendant

Hearing: 10 September 2012

Counsel: TK Cunningham-Adams for plaintiff
RA Dellow for defendants

Judgment: 13 September 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]

Solicitors: Simpson Grierson, Private Bag, 92 518, Auckland
Wynyard Wood, PO Box 2217, Auckland 1140

WATERCO (NZ) LIMITED V SIMPSON HC AK CIV-2012-404-2863 [13 September 2012]

Table of Contents

The application ................................................................................................... 2

Procedural history of the proceeding......................................................... 3

The Court’s jurisdiction in respect of this fixture .................................. 6

Background .......................................................................................................... 8

The preliminary issue....................................................................................... 9

The Court’s approach to a summary judgment application............ 12

The plaintiff’s submissions ........................................................................... 13

The defendants’ submissions ...................................................................... 13

The timeline under clause 13 ..................................................................... 14

The authorities that considered a stay in reliance on a dispute resolution clause .............................................................................................. 16

Does clause 13 apply in the circumstances of this case?................ 18

Has a sufficient case been made out to justify the grant of a stay
in this case? ....................................................................................................... 18

Conclusions ........................................................................................................ 19

Costs..................................................................................................................... 20

The application

[1] The plaintiff applies for summary judgment against the first and second defendants in respect of four causes of action pleaded in its statement of claim.

[2] In its first cause of action the plaintiff pleads that the defendants guaranteed the obligations of Daco Investments Glenfield Ltd under franchise deeds dated
3 June 2008 and 3 April 2009. The plaintiff pleads that as at 31 March 2012 the defendants owe $448,939.25 plus interest at the contract rate and costs.

[3] In its second cause of action the plaintiff pleads that the defendants guaranteed the obligations of Daco Investments Parnell Ltd under a franchise deed dated 3 June 2008. The plaintiff pleads that as at 31 March 2012 the defendants owe
$50,500.47 plus interest at the contract rate and costs.

[4] In its third cause of action the plaintiff pleads that the defendants guaranteed the obligations of Daco Investments Glenfield Ltd under a deed of licence. The plaintiff pleads that as at 31 March 2012 the defendants owe $36,763.59 plus interest at the contract rate and costs.

[5] In its fourth cause of action the plaintiff pleads that the defendants guaranteed the obligations of Daco Investments Parnell Ltd under a deed of licence. The plaintiff pleads that as at 31 March 2012 the defendants owe $35,357.02 plus interest at the contract rate and costs.

Procedural history of the proceeding

[6] The plaintiff’s application for summary judgment, statement of claim, affidavit in support and notice of proceeding were filed on 24 May 2012. The application was given a first date of hearing for 10 July 2012.

[7] On 5 July 2012 the first and second defendants filed a notice of appearance by their solicitor and counsel. It does not follow precisely Form G 7 of Schedule…

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: [2012] NZHC 2361
Decision Date: 13 September 2012

CaseChat Overview and Summary

The case of Waterco (NZ) Limited v Simpson involves an application for summary judgment brought by the plaintiff, Waterco (NZ) Limited, against the first and second defendants, David Alan Simpson and Courtney James Ryan, respectively. The plaintiff seeks judgment against the defendants for amounts owed under various franchise agreements. The defendants opposed the application for summary judgment, arguing that the proceeding should be stayed until the parties had exhausted the dispute resolution process set out in clause 13 of the Swimart franchise deeds.

The court determined that the primary issue to be decided was whether the plaintiff's claims should be stayed until the parties had exhausted the dispute resolution process set out in clause 13 of the Swimart franchise deeds. The court found that clause 13 applied in the circumstances of the case and that a sufficient case had been made out to justify the grant of a stay. The court concluded that a stay limited to a period of 80 days was justified in this case, allowing the parties an opportunity to resolve the disputes through the mediation process. The court ordered that the proceeding be stayed until 4 December 2012, and if the matter had not settled by that date and if a notice was served in accordance with clause 13(7) of the franchise deeds, an amended notice of opposition and affidavits in support and, if appropriate, a counterclaim shall be filed and served by 5 December 2012. The proceeding was adjourned to the summary judgment list at 2:15pm on 6 December 2012. The court reserved the question of liability to pay costs pending further order of the court.

Orders