Perpetual Trust Limited v Mainzeal Property and Construction Limited

[2013] NZHC 1027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7597 [2013] NZHC 1027

BETWEEN  PERPETUAL TRUST LIMITED

First Plaintiff

ANDAMP CAPITAL PROPERTY PORTFOLIO LIMITED

Second Plaintiff

ANDMAINZEAL P ROPERTY AND CONSTRUCTION LIMITED First Defendant

ANDNUPLEX INDUSTRIES LIMITED Second Defendant

ANDPROJECT ROOFING LIMITED Third Defendant

ANDCALSON SERVICES LIMITED Fourth Defendant

ANDDOMINION CONSTRUCTORS (1973) LIMITED

Fifth Defendant

ANDVILLAGE FARMS LIMITED Sixth Defendant

ANDMCALPINE HUSSMANN LIMITED Seventh Defendant

ANDY NOT PLASTERERS LIMITED Eighth Defendant

ANDROBERT GORE LIMITED Ninth Defendant

ANDDOWNER WORKS EDI LIMITED Tenth Defendant

ANDDEAN STEEL LIMITED Eleventh Defendant

ANDCONTRACT COATINGS LIMITED Twelfth Defendant

ANDD L GOOD PLUMBERS LIMITED Thirteenth Defendant

ANDSTUDORP LIMITED Fourteenth Defendant

ANDPEDDLE THORP AITKEN LIMITED Fifteenth Defendant

ANDCONTRADO LIMITED Sixteenth Defendant

ANDJAMES HARDIE NEW ZEALAND LIMITED

Seventeenth Defendant

ANDHAMES SHARLEY INTERNATIONAL LIMITED

First Third Party

PERPETUAL TRUST LIMITED V MAINZEAL PROPERTY AND CONSTRUCTION LIMITED HC AK CIV-

2010-404-7597 [9 May 2013]

ANDBRUCE JOHN WALLACE Second Third Party

Hearing:         9 May 2013

(Heard at Auckland)

Counsel:         G.J. Kohler - Counsel for Seventh Defendant

No appearance for any other party

Judgment:      9 May 2013

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by me on 9 May 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ..................................

Solicitors:           Schnauer & Co Ltd, Solicitors, PO Box 31 272, Milford, Auckland City 0741

[1]      Before the Court are four matters:

(a)      An application by the seventh defendant to strike-out counterclaims made against it by the first defendant.

(b)      An application by the seventh defendant to strike-out counterclaims made against it by the fifth, fourteenth and seventeenth defendants.

(c)      An (oral) application by the seventh defendant to strike-out the cross- claim brought against it by the third defendant.

(d)      What is effectively an application by the seventh defendant seeking that the leave of this Court be granted to a discontinuance of the plaintiffs’ claim against that seventh defendant, given that at this point not all of the defendants in this proceeding have given their consent to such discontinuance.

[2]      I turn now to deal with each of these applications.

(A)      Application to Strike-Out Crossclaim made against Seventh Defendant by the First Defendant

[3]      The first defendant Mainzeal Property and Construction Limited (Mainzeal)

is now in liquidation.

[4]      Counsel for Mainzeal has apparently confirmed that in terms of s 248(1)(c) Companies Act 1993 the first defendant does not intend to be involved in this proceeding in the future, and that it regards the proceeding as effectively stayed against it.

[5]      Section  248(1)(c)  Companies  Act  1993  however  deals  with  proceedings which are commenced or continued against the first defendant.

plaintiff).

[7]      The Court has not been finally advised by Mainzeal’s liquidators or their counsel however whether or not the first defendant does wish to take further steps with respect to that cross-claim.  If confirmation of its desire not to proceed in any way had been given, then of course that cross-claim could now be struck-out unconditionally.

[8]      It  would  appear  likely  in  my view  that  given  its  current  status  the first defendant intends to take no steps whatever in this proceeding including with regard to its cross-claim.

[9]      That said, as I see the position, it is appropriate here for the first defendant’s cross-claim to be struck out (conditionally) and for this order to be conditional for a period of 10 working days on the first defendant not advising the Court in that time that it wishes to formally oppose the present strike-out application.

[10]     An order is now made therefore striking-out the first defendant’s cross-claim against the seventh defendant, but this order is conditional upon the first defendant within 10 working days of the date of this decision not advising the Court that it wishes to oppose the seventh defendants strike-out application.

[11]     Costs with respect to that strike-out application are to lie where they fall.

[12]     The Registrar is directed forthwith to provide a copy of this decision to the liquidators of Mainzeal and to counsel and the solicitors on the record for Mainzeal.

(b)      Application   to   Strike-Out   Cross   Claims   made   against   Seventh

Defendants by Fifth, Fourteenth and Seventeenth Defendants

[13]     This application no longer needs to proceed given that the fifth, fourteenth and seventeenth defendants have now filed Notices of Discontinuance of their cross-

(c)      (Oral) Application to Strike-Out Cross  Claims  made against Seventh

Defendant by the Third Defendant

[14]     This  application  also  no  longer  needs  to  proceed  given  that  the  third defendant has now filed a Notice of Discontinuance of its cross claim against the seventh defendant.  There are also no issues as to costs on this discontinuance.  This is simply noted at this point.

(d)     Seventh Defendant’s Application for Leave to be Granted for the Discontinuance of the Plaintiff ’s Claim in this Proceeding against the Seventh Defendant

[15]     The  plaintiff  has  filed  a  Notice  of  Discontinuance  of  its  claim  in  this proceeding against the seventh defendant.

[16]     That Notice of Discontinuance, as I understand it, has been consented to by a number of the other defendants pursuant to r 15.20(4) High Court Rules but, given that the Notice has been filed relatively recently, there has been insufficient time to obtain the consent of all defendants.

[17]     The  seventh  defendant  therefore  is  now  seeking  an  order  of  this  Court pursuant to r 15.20 (4) granting leave to the discontinuance of the plaintiffs’ claim in this proceeding against the seventh defendant.

[18]     In support of this application Mr Kohler who appeared as counsel for the seventh defendant has referred the Court to the decision of His Honour Associate Judge Doogue in Perpetual Trust Limited v Mainzeal Property and Construction Limited HC, Auckland, 23 February 2012, [2012] NZHC 223.

[19]     In that decision which was related to the present proceeding, His Honour

Associate Judge Doogue granted leave to the plaintiffs to discontinue their claim

[20]     The present situation before me in my view involves similar aspects to the decision in that case.  The difference is that in the present case, there has been no opposition to the granting of the leave sought, nor has there been any appearance for any other defendant.

[21]     That said, and applying generally the matters and principles relied upon by His Honour Associate Judge Doogue in that earlier decision, I am satisfied that leave should be granted here as sought, but again conditional upon none of the other defendants within 10 working days of today indicating that they wish to oppose the granting of such leave to the plaintiffs’ discontinuance of their claim against the seventh defendant.

[22]     An order is now made therefore granting leave to the plaintiffs to discontinue their claim in this proceeding against the seventh defendant, but this order is conditional upon no other defendant within 10 working days of the date of this decision advising the Court that it wishes to oppose the granting of such leave.

[23]     Again there is no issue as to costs with respect to that application.

[24]     Finally, for the sake of completeness,  I reserve leave here for any party affected by any of the matters in this decision to approach the Court on 48 hours notice if additional directions may be required.

[25]     The Registrar is directed forthwith to provide a copy of this decision to the remaining defendants in this proceeding.

‘Associate Judge D.I. Gendall’