N-TECH LIMITED AND ORS V ABOOTH LIMITED (IN REC.) AND ANOR HC AK CIV 2006-404-003362

N-TECH LIMITED AND ORS V ABOOTH LIMITED (IN REC.) AND ANOR HC AK CIV 2006-404-003362

The joint memorandum merely recorded existing intentions and concessions; it did not create a binding contract because there was no bargain or consideration and no clear offer capable of acceptance. Consequently the plaintiffs were free to withdraw their application for leave to discontinue before the Court made orders. Although the Lowndes Jordan defendants reasonably assumed the plaintiffs would not withdraw and incurred wasted costs preparing a costs memorandum, that detriment was compensable by costs and did not establish estoppel preventing withdrawal.

Citation
openlaw-4f83421f_cf96_41bc_9e5e_edb8050c7110.pdf
Parties
First Plaintiff: N-TECH LIMITED; Second Plaintiff: ST LUCIA INVESTMENTS LIMITED; Third Plaintiff: TOTARA INVESTMENTS LIMITED; First Defendant: ABOOTH LIMITED (IN REC.); Second to One Hundred and Twenty First Defendants: Gosling Chapman LAQCs (Lowndes Jordan defendants); First Third Parties: R J CHAPMAN, G D C WALKER, T F MCGRATH; Second Third Parties: M V RICHARDSON AND T J GOLDFINCH; Third Third Party: RUSSELL MCVEAGH; First Fourth Party: H C VINCENT; Second Fourth Parties: J M K BROWN AND P H CASTLE; Third Fourth Party: K A SCHWASS
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 October 2008
Procedural Posture
Civil Proceeding R 418 Determination / Application for Answers to Questions on Status of Joint Memorandum and Discontinuance (leave to Discontinue)
Outcome
Judgment for plaintiffs on contractual and estoppel claims: No binding agreement; plaintiffs may withdraw application for leave to discontinue; plaintiffs ordered to reimburse Lowndes Jordan defendants reasonable solicitor/client costs for preparation of the costs memorandum; costs of this r 418 application to lie...
Legal Topics
Discontinuance, Leave to Discontinue, Enforceability of Memorandum of Counsel, Estoppel by Representation, Implied Terms, Costs Memoranda, Receivership Withdrawal
Civil Procedure Contract Law Equitable Estoppel Costs Law Insolvency/receivership Discontinuance Leave to Discontinue Enforceability of Memorandum of Counsel +4 more

Case Brief

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Parties

N-TECH LIMITED

First Plaintiff

ST LUCIA INVESTMENTS LIMITED

Second Plaintiff

TOTARA INVESTMENTS LIMITED

Third Plaintiff

ABOOTH LIMITED (IN REC.)

First Defendant

Gosling Chapman LAQCs (Lowndes Jordan defendants)

Second to One Hundred and Twenty First Defendants

R J CHAPMAN, G D C WALKER, T F MCGRATH

First Third Parties

M V RICHARDSON AND T J GOLDFINCH

Second Third Parties

RUSSELL MCVEAGH

Third Third Party

H C VINCENT

First Fourth Party

J M K BROWN AND P H CASTLE

Second Fourth Parties

K A SCHWASS

Third Fourth Party

Procedural Posture

Civil Proceeding R 418 Determination / Application for Answers to Questions on Status of Joint Memorandum and Discontinuance (leave to Discontinue)

Legal Issues

  1. 1 Whether the joint memorandum of counsel dated 12 June 2008 constituted an enforceable contract binding the plaintiffs to maintain their application for leave to discontinue
  2. 2 Whether the plaintiffs could unilaterally withdraw their application for leave to discontinue prior to the Court making orders
  3. 3 Whether the Lowndes Jordan defendants are estopped from asserting the plaintiffs' unilateral withdrawal because they relied to their detriment on the memorandum

Ratio Decidendi

The joint memorandum merely recorded existing intentions and concessions; it did not create a binding contract because there was no bargain or consideration and no clear offer capable of acceptance. Consequently the plaintiffs were free to withdraw their application for leave to discontinue before the Court made orders. Although the Lowndes Jordan defendants reasonably assumed the plaintiffs would not withdraw and incurred wasted costs preparing a costs memorandum, that detriment was compensable by costs and did not establish estoppel preventing withdrawal.

Court Disposition

Judgment for plaintiffs on contractual and estoppel claims: No binding agreement; plaintiffs may withdraw application for leave to discontinue; plaintiffs ordered to reimburse Lowndes Jordan defendants reasonable solicitor/client costs for preparation of the costs memorandum; costs of this r 418 application to lie...

Orders

  • There was no enforceable agreement created by the joint memorandum dated 12 June 2008
  • The plaintiffs were not bound to maintain their application for leave to discontinue and could unilaterally withdraw it prior to an order being made