Zespri Group Ltd v Southlink Supply Ltd - [2017] NZHC 1378

ORDER PROHIBITING ACCESS, DISCLOSURE OR PUBLICATION OF SCHEDULES 11 AND 13 OF THE SUPPLY AGREEMENT. ACCESS TO THE COURT FILE IS TO BE DECIDED BY A JUDGE (NOT A REGISTRAR) AS PER PARAGRAPHS [29] AND [32] HEREIN.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-248 [2017] NZHC 1378

BETWEEN
ZESPRI GROUP LIMITED

Plaintiff

AND

SOUTHLINK SUPPLY LIMITED Defendant

Hearing: 13 June 2017

Appearances:

M Russell and S Waalkens for the Plaintiff
S J Corlett for the Defendant

Judgment:

26 June 2017

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 26 June 2017 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Meredith Connell, Auckland, for the Plaintiff
Brookfields, Auckland, for the Defendant

ZESPRI GROUP LIMITED v SOUTHLINK SUPPLY LIMITED [2017] NZHC 1378 [26 June 2017]

[1] In this product contamination case, Zespri Group Ltd applies for summary judgment on liability only. Zespri’s case is that Southlink Supply Ltd supplied it with contaminated kiwifruit. Some potentially affected kiwifruit had been shipped overseas when the contamination was discovered. It dumped the off- shore kiwifruit. It sues for loss of revenue and disposal costs alleging breach of contract and breach of duty of care. It applies for summary judgment on liability only for breach of contract. While it says that it can prove breach of contract on a summary judgment basis, it accepts that all issues beyond that, including causation, damage and relief, are not suitable for summary judgment.

[2] Rule 12.3 of the High Court Rules provides that the court may give judgment on liability and direct a trial on the issue of the amount if the party applying for summary judgment satisfies the court that the only issue to be tried is one about the amount claimed. As to summary judgment, the principles are well settled In Krukziener v Hanover Finance Ltd the Court of Appeal re-stated
them:1

[26] … 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. … The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, 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. … The Court will not normally resolve material conflicts of evidence or assess the credibility of the 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, which is inherently improbable.
… In the end, the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.

[27] …[T]he defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if…

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: [2017] NZHC 1378
Decision Date: 26 June 2017

CaseChat Overview and Summary

In this case, Zespri Group Limited brought an action against Southlink Supply Limited for alleged breaches of contract and negligence in connection with the supply of contaminated kiwifruit. The High Court of New Zealand was tasked with deciding the legal issues arising from the case, including whether Zespri was entitled to summary judgment on liability only and whether certain provisions of the supply agreement should be kept confidential. The court considered the principles of summary judgment and the terms of the supply agreement in making its decision. After evaluating the evidence presented, the court concluded that Southlink had breached the contract by supplying contaminated kiwifruit and failing to exercise reasonable care, skill, and diligence in grading the kiwifruit. The court further found that Zespri was entitled to summary judgment on liability only, as the breaches of contract were established and the issues of mitigation and extent of loss were more suitable for trial. Finally, the court ruled that certain provisions of the supply agreement should remain confidential and that access to the court file should be decided by a judge rather than a registrar.

The final orders of the court were as follows:

1. Summary judgment on liability was granted to Zespri Group Limited against Southlink Supply Limited for the breaches of contract specified in the judgment.
2. Schedules 11 and 13 of the supply agreement were not to be accessed, disclosed, or published.
3. Any application for access to the court file was to be decided by a Judge, not by a Registrar, and was to be made only on notice to the parties.
4. The Registrar was to allocate a case management conference for directions to be given for the rest of the proceeding. Ahead of the conference, the parties should confer as to discovery and other case management directions.

Orders