MEREDITH v GLOBAL METAL SOLUTIONS LIMITED [2020] NZHC 2482

MEREDITH v GLOBAL METAL SOLUTIONS LIMITED [2020] NZHC 2482 [23 September 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2019-443-73[2020] NZHC 2482BETWEEN GRAHAM JOHN MEREDITH andLW NOMINEES LIMITED, as trustees ofthe MEREDITH FAMILY TRUSTFirst PlaintiffsAND G J MEREDITH LIMITED (previouslyMEREDITH SCRAP METALS LIMITED)Second PlaintiffAND GLOBAL METAL SOLUTIONS LIMITEDDefendantHearing: 9 September 2020 (by VMR)Appearances: S W Hughes QC for First and Second PlaintiffsP V Cornegé for DefendantJudgment: 23 September 2020JUDGMENT OF ASSOCIATE JUDGE LESTERThis judgment was delivered by me on 23 September 2020 at 12.30pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar23 September 2020Introduction[1] The first plaintiff, the trustees of the Meredith Family Trust (the Landlord),brings this summary judgment application seeking an order for vacant possession ofa commercial site located on De Havilland Drive, Bell Block, New Plymouth. Thesite was leased to the defendant, Global Metal Solutions Ltd (Global), under a leasefor one year on the 6th edition Auckland District Law Society lease form dated7 September 2018 (the De Havilland Drive Lease).[2] Global asserts the De Havilland Drive Lease is subject to the terms ofa Collateral Agreement it reached with Mr Graham Meredith (Mr Meredith), a trusteeof the Landlord and a director of the second plaintiff, Meredith Scrap Metals Ltd (nowknown as G J Meredith Ltd) (MSM).[3] Global says breaches of the Collateral Agreement entitle it to remain inpossession of the De Havilland Drive site the Collateral Agreement has beenperformed.[4] Initially, MSM sought summary judgment in relation to property it said wasbeing unlawfully detained by Global. MSM did not pursue that application and it wasnot addressed by other counsel in their written submissions. I record MSM'sapplication as being withdrawn.Context[5] MSM owned a scrap metal business operated from 7 Catalina Place,New Plymouth (Catalina Place). Catalina Place is owned by the Landlord. TheLandlord also owns the De Havilland Drive property which neighboursCatalina Place.[6] In early 2018, Global was looking to expand. On 16 July 2018, havingundertaken research with the approval of MSM, it presented MSM with whatamounted to an enquiry as to whether MSM would sell its business based on theproposed terms. The "offer" recorded that it did not:. constitute a legally binding or enforceable commitment of the partieshereto and is subject to amongst other things the execution of a definitive saleagreement and satisfaction of various conditions referred to in this letter.[7] Described as a "key assumption" in the letter was that all rubbish, includingtyres located on the Catalina Place site were to be removed by the vendor within a timeframe to be agreed between Mr Meredith of the plaintiffs and Mr Tuhoro of Global.Another key assumption was that leases for Catalina Place and De Havilland Drivewould be available on satisfactory terms to Global.[8] Following submission of the "offer", Global determined it did not requirea lease of the De Havilland Drive site.[9] MSM, by its solicitor, replied to the offer on 24 July 2018 advising that subjectto a few points, Global's proposals was acceptable to MSM. The solicitor for MSMnoted a lease of De Havilland Drive was not required but stated:Our client Company will need some time to remove all of the items from theCatalina Place premises. During that period, they are happy for yourCompany to use the De Havilland Drive property at no cost.[10] Global's response to this issue, in its letter of 25 July 2018, was:We note that clause 4 offers a free period for the use of the De Havilland Driveproperty while items are being cleared from Catalina Place to make it useable.We would like to include the right to take up a lease within a 12 month periodfrom settlement with a first Right of Refusal on purchase of the propertyshould it become available for sale.[11] There followed a "Key Terms Sheet" dated 31 July 2018 prepared by Global.It set out the terms sought by Global for a new lease of Catalina Place, and in respectof De Havilland Drive stated:In addition, the Landlord indicated above will enter into a simple sideagreement to allow 12 months interest-free use by GMS of their adjoiningPremises at De Havilland Drive, Bell Block (Lot 1 Deposited Plan 341109CT 168990) during the Vendor's removal of surplus and waste items atCatalina Place. The agreement will also offer GMS first right of refusalshould the Landlord consider selling or leasing the De Havilland Drivepremises.[12] The Key Terms Sheet went on to conclude, notwithstanding it contemplatedboth parties would sign it, that:Binding Terms With the exception of the terms as to Confidentialityand Exclusivity (which shall be binding on bothparties), the parties acknowledge that this key termsdocument is otherwise non-binding.[13] The removal of items owned by MSM from Catalina Place was referred to inits solicitor's letter dated 27 August 2018 as follows:There are some small amounts of steel that our client would like to retain. Heproposes to mark those with yellow fluro during the meeting tomorrow so thatthere is no dispute in terms of those items. It may take a little time aftersettlement for that identified stock to be removed.[14] As to the tyres, the 27 August 2018 letter said:Removal of TyresThere are some tyres at the back of the property which our client will removebut will take some time. Whilst they remain on the property, there will be nodisturbance to your client's business.If we could clarify these final matters together with the matters raised in ourearlier email then hopefully we will be in a position to have a final Agreementfor Sale and Purchase signed and establish a mutual acceptable date forsettlement.[15] On 29 August 2018, Global's solicitor replied and said in relation to the tyres:"Our client agrees to this and will arrange the removal of the tyres directly with yourclient."[16] Matters proceeded apace. An Agreement for Sale and Purchase of a Businessdated 31 August 2018 was executed with settlement to occur five working daysthereafter, on 7 September 2018 (the Agreement).[17] In the Special Conditions of the Agreement were a number of conditionsprecedent including in relation to De Havilland Drive, as follows:22. CONDITIONS PRECEDENT22.1 (b) The Purchaser negotiating mutually acceptable terms with theTrust, providing the Purchaser with:(i) The right to use the Trust's property atDe Havilland Drive, Bell Block (being Lot 1Deposited Plan 341109, CT 168990) for a period of12 months, at no cost, to remove the Vendor's surplusand waste items from the Premises; and(ii) A first right of refusal to purchase and/or lease theTrust's property, as the case may be, should the Trustdecide to sell or lease the Trust's property.[18] There was a separate condition precedent in respect of Global's lease ofCatalina Place.[19] Separate leases on the 6th edition ADLS form were entered into between theLandlord and Global in respect of the two sites, both dated 7 September 2018.The De Havilland Drive Lease[20] The De Havilland Drive Lease is for one year without a right of renewal, suchbeing deleted. The final expiry is described in the First Schedule as being"September 2019" – the exact date has not been filled in and it is also absent from thecommencement date. The business use is described as "Ancillary Yard to Scrap MetalDealer and Processor".[21] The De Havilland Drive Lease contained further terms including a first rightof refusal to lease or purchase. The rental for the year is $1.00.[22] Global's purchase of the business settled and it took possession of both theCatalina Place and De Havilland Drive premises. Unfortunately, the relationshipbetween Mr Tuhoro and Mr Meredith broke down. The tyres and other materials havenot been removed from Catalina Place. Global says the terms of the CollateralAgreement mean it is entitled to remain in occupation of De Havilland Drive until thetyres are removed and other terms of the Collateral Agreement are complied with.The Collateral Agreement[23] Mr Tuhoro, in his affidavit sworn 25 June 2020, describes the SpecialCondition in the Agreement concerning the De Havilland Drive Lease as follows:24. The Agreement provided, at clause 22.1(b), a condition requiringterms to be agreed for our occupation of de Havilland and the removalof Scrap Metals "surplus and waste items" from Catalina.[24] I do not think this is an accurate summary of cl 22.1(b) which concerned givingGlobal the right to use De Havilland Drive for 12 months and during that period thewaste items would be removed from Catalina Place. To the extent that Mr Tuhoro'sevidence is aimed at suggesting settlement was conditional upon there being anagreement as to the terms of removal, I do not accept that proposition.[25] Mr Tuhoro, in his affidavit, goes on to say there were items that could not bechecked in relation to the purchase because the Catalina Place site was, in his words,"an absolute shamble." He says:27. Mr Meredith and I had agreed that it would not be possible todocument all of our understandings in the relevant contracts,otherwise matters would be going backwards and forwards betweenthe lawyers indefinitely. As such, we agreed that issues such as ouruse of de Havilland and the removal of Scrap Metal's tyres and otherassets would be subject to a "side agreement", as referred to in theTerm Sheet and progressed by oral agreement.28. In my view, a clear agreement was reached, consistent with the priorcorrespondence referred to above, that we would have the use ofde Havilland, at no cost, while Scrap Metal and the Landlordarranged:(a) The removal of Scrap Metal's surplus assets;(b) The removal of Scrap Metal's tyres;(c) The fencing of Catalina; and(d) Appropriate drainage of Catalina ("the CollateralAgreement"),in consideration for the likely interruption to our quiet enjoyment of Catalinacaused by these issues.[26] Mr Tuhoro does not give details as to exactly when he alleges this "clearagreement" was reached or the precise terms of the agreement. From his affidavit, itmust have been reached prior to 31 August 2018, as he says:30. Given the matters outlined above, I was somewhat surprised thata formal lease was provided for de Havilland on 31 August 2018.However, given the Collateral Agreement reached with Mr Meredithand the time pressures arising from settlement on 7 September 2018,[he] agreed to sign the lease for de Havilland as presented[27] The notice of opposition describes the De Havilland Drive Lease as subject tothe Collateral Agreement. It recites the presence of waste tyres and other assets atCatalina Place and says:3. (a) (ii) The First Plaintiff ("the Landlord") and Scrap Metalacknowledged that it would take some time to removethe Assets from Catalina and that having the Assets atCatalina would interfere with the Defendant's quietenjoyment of Catalina;(iii) The Landlord and Scrap Metal offered the Defendantuse of the First Plaintiff's property atDe Havilland Drive ("de Havilland") for a tokencost to compensate the Defendant for the interferencewith the quiet enjoyment while the Assets remainedat Catalina;[28] The notice of opposition recites it was intended that MSM would remove thetyres and other items from Catalina Place and relocate them onto De Havilland Drive.Further, it was intended that action would be completed within 12 months. In additionthe Landlord would complete the fencing of the Catalina Place property and:3. (a) (vii) The Defendant entered into the lease ofde Havilland as part of this collateral agreementreached with the Landlord and Scrap Metal regardingthe removal of the Assets from Catalina over time andthe fencing of Catalina ("the Collateral Agreement).[29] It is said the Landlord and MSM have breached the Collateral Agreementbecause MSM has failed to remove the tyres and other items from Catalina Place andthe Landlord has failed to complete the fencing required, as agreed. Further, it is saidthat issues have arisen in respect of the drainage of Catalina Place.[30] The notice of opposition concludes:3. (c) The lease of de Havilland is subject to the terms of theCollateral Agreement and, as a consequence of the breach ofthe Collateral Agreement, the Defendant is entitled to remainin possession of de Havilland until the Collateral Agreementhas been performed.[31] In substance, Global must be submitting that the terms of the CollateralAgreement mean its occupation of De Havilland Drive was not for a 12 month term,but was for 12 months or until the Collateral Agreement was satisfied, whichever wasthe longer.[32] It must be inherent in Global's case that the Collateral Agreement in some wayamends the term of the De Havilland Drive Lease. I say that, as if it were otherwise,then breach of the obligation to remove the tyres would only give Global its usualrights in respect of a breach of contract. Such would not include the court denyingthe Landlord vacant possession on the basis Global retained a right to occupy.Summary judgment principles[33] The Landlord points to the expiry of the one year term under theDe Havilland Drive Lease and says it follows that Global's right to occupy has ended.If the facts ended there, the Landlord would succeed. "Where the plaintiff'sunchallenged evidence is sufficient to convince the Court that there is no defence, thedefendant will obviously have to respond in order to defeat the application."1[34] Once a plaintiff has put forward sufficient evidence for the court to beconfident that there is no defence:2It is then for the defendant to provide some evidential foundation for a bonafide defence, otherwise the plaintiff's evidence ought to be accepted unless itis patently wrong: Doyles Trading Co Ltd v West End Services Ltd [1989]1 Andrew Becks (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.05]referring to MacLean v Stewart (1997) 11 PRNZ 66 (CA).2 Matthew Casey (ed) Sim's Court Practice (looseleaf ed, LexisNexis) at [HCRPart 12.1].1 NZLR 38 (CA) and Australian Guarantee Corporation (NZ) Ltd v McBeth[1992] 3 NZLR 54 (CA).[35] If the defence raises questions of fact upon which the case may turn, summaryjudgment will not be appropriate. Here, the real issue is whether Global's evidenceraises such a question of fact in relation to the existence of the Collateral Agreement.Evidence of the Collateral Agreement[36] Mr Tuhoro's evidence concerning when he and Mr Meredith reachedagreement, and in respect of the exact terms of the Collateral Agreement, is lacking.It is necessary to review in detail Mr Tuhoro's evidence in respect of the CollateralAgreement.[37] The tenor of Mr Tuhoro's evidence is that Global had an expectation that itcould use the De Havilland Drive property pending the removal of the tyres and othermaterial, which Mr Tuhoro expected would be completed within 12 months.However, Mr Tuhoro does not actually describe such an agreement being made.[38] Mr Tuhoro's narrative refers to the 24 July 2018 letter, referred to at [9] above,offering the use of the De Havilland Drive property pending removal of the tyres. Herecounts Global taking up that proposal and, in doing so, raising the issue of fencingand drainage. The Key Terms Sheet followed with the clause set out at [11] above.He recounts the exchange of correspondence set out at [13-15] above.[39] Mr Tuhoro's evidence refers to the passage in Global's solicitor's letter of29 August 2018 recording that the issue of the surplus tyres would be addressedseparately between Mr Tuhoro and Mr Meredith (at [15] above). Mr Tuhoro'saffidavit then moves to paras 27 and 28, set out at [25] above, which assume that theCollateral Agreement has been made.[40] Mr Cornegé, counsel for Global, submitted para 28 was sufficient evidencethat an agreement was reached. I do not accept that submission. It was incumbent onMr Tuhoro, faced with an expired written lease, to provide basic details in respect ofthe agreement upon which Global's defence was wholly dependent.[41] At no point in his narrative of the events does Mr Tuhoro describe a meetingor discussion with Mr Meredith where the terms of the Collateral Agreement werediscussed, let alone agreed. If part of the Key Terms Sheet was to form part of theCollateral Agreement with Mr Meredith, Mr Tuhoro would have needed to raisethe provision he was relying on so that Mr Meredith could agree with it, given thedefault position was that the Key Terms Sheet was not binding (para [12] above).Again, Mr Tuhoro claims the Collateral Agreement was struck prior to31 August 2018, as described at [26] above.[42] So, the Collateral Agreement, if reached, would have been made between theletters of 29 August 2018 and 31 August 2018. Given the existence of the CollateralAgreement is critical to the opposition to the summary judgment, I would haveexpected it to have been particularised in Mr Tuhoro's evidence. Paragraphs 27 and28 of Mr Tuhoro's affidavit are no more than a bare assertion of an agreement. Infact, para 27 refers to an agreement to have a "side agreement" – not that the "sideagreement" was made – para 28 does no more than assert an agreement.[43] Mr Tuhoro is critical that Mr Meredith has not sworn an affidavit – theLandlord's evidence coming from Mr Franklin, the plaintiffs' solicitor. That criticismwould carry more weight if Mr Tuhoro had described communications withMr Meredith that required a response from Mr Meredith. Mr Tuhoro says Mr Franklinwas not party to the discussions or agreements reached between himself andMr Meredith. That may be true but no agreement other than those in writing, isdescribed in Mr Tuhoro's evidence, so Mr Franklin is able to give evidence in respectof his involvement in those agreements.[44] Following the agreement, Mr Tuhoro's conduct reinforces my conclusion thathis evidence of the Collateral Agreement is lacking. For example, within six monthsof settlement of the transaction, Global had written to the solicitors acting for bothplaintiffs. This occurred at a time when the relationship had broken down betweenMr Tuhoro and Mr Meredith. The letter dated 20 February 2019, gave 60 days' noticefor removal of the tyres and to address other issues. If, under the terms ofthe Collateral Agreement the removal of the tyres was linked to the 12 month term ofthe De Havilland Drive Lease, it would not have been open to Global to attempt togive a 60 days ultimatum. Nor does the letter refer to the Collateral Agreement. Theletter was written when it is clear Global was frustrated with Mr Meredith. That isthe very time I would have expected Global to have relied on the CollateralAgreement. Instead, before Global raised the points of concern (including the tyres),the letter said:Pursuant to our Sale and Purchase Agreement and our discussion on4/12/2018 we write to request that the following be completed within 60 daysof this letter.[45] The Collateral Agreement is not mentioned in the subsequent correspondencebetween the parties' solicitors. There is merit in Ms Hughes' submission thatcontemporaneous records are of more value than how events are described in thepleadings.[46] The closest Global's solicitor gets to referring to there being agreementsreached between the plaintiffs and Global is para 2 of the letter of 31 May 2019. Inthe previous month, the plaintiffs' solicitors had expressly referred toDe Havilland Drive reverting to the Landlord at the end of the one year term. In theletter of 31 May 2019, Global's solicitor says the agreement reached included theLandlord providing security and fencing for Catalina Place, servicing the businessequipment, and providing Global with an option to lease the De Havilland Drive siteat the end of the 12 month term. The letter goes on to discuss each of those claimedagreements. The detailed letter makes no mention of the Collateral Agreement.[47] It seems from the letter Global believed the Landlord had agreed to allow it toextend the lease on De Havilland Drive after the initial 12 month term. The letter saysthe Landlord was reneging on that agreement. Global understood, indeed claimed inits solicitor's letter, it was "adamant" the Landlord had agreed to allow Global toextend the term of the De Havilland Drive Lease. The right to extend, as asserted inthe letter, is not easy to reconcile with the Collateral Agreement being in effecta default extension in the event of a breach of the Collateral Agreement.[48] The letter of 29 July 2019 from Global's solicitor, refers to representations saidto have been made prior to purchase by one or other of the plaintiffs, but does not referto a Collateral Agreement.[49] Again, on 6 August 2019, the Landlord's solicitor referred to theDe Havilland Drive Lease expiring on 7 September 2019. The letter referred tothe Landlord wishing to arrange an inspection of the premises. The response fromGlobal's solicitor referred to Mr Meredith being subject to a trespass notice as regardsto the site, however, invited Mr Meredith's representative to arrange site access.Again, this cannot be reconciled with the Collateral Agreement as at the time the tyresand other items remained on the Catalina site.[50] It is only on 6 September 2019 that Global's solicitor links the end of theDe Havilland Drive Lease to the issue of the tyres. The letter of 6 September refers toa request made on 21 August 2019 that the tyres be removed by 1 September 2019 andsays:To date your client has not attended to the above. When does he intend onaddressing these matters? It is our client's position that the above items needto be attended to as a matter of urgency before the handover of the site canoccur.[51] Again, this is the very time I would have expected the existence of theCollateral Agreement to have been emphasised.[52] On 12 September 2019, when there was some heat coming into the issuebetween the parties, Global's solicitor wrote to the Landlord's solicitor in relation tothe removal of the tyres and said:Without our client having the benefit of the lease of the De Havilland site, onwhat basis does your client think he is entitled to store his tyres on our client'sCatalina Place site? Whilst our client has the lease of the De Havilland site itis tolerable that the tyres remained on the Catalina site, however, if your clientis claiming repossession of the De Havilland site then he must makearrangements (and advise our client of them) to move the tyres.[53] Later in that letter, Global's solicitor says:It is our client's view that his purchase of the business encompassed the leasesfor both sites. Consequently, the issues that he has raised effect both sites.This is particularly evident in relation to the fencing, drainage and tyres. Hedoes not see the issues he has raised in relation to the leases as beingindependent to each lease, as suggested.[54] In a letter of 10 October 2019 from the Landlord's solicitor to Global'ssolicitor, the solicitor referred to the De Havilland Drive Lease being at an end andsaid; "[y]ou have not indicated any legal basis that gives your clients the right tocontinue in possession of a lease which has expired."[55] The reply from Global was "The basis upon which our client continues tooccupy the De Havilland Drive site has been set out to you in our previouscorrespondence."[56] At the risk of labouring the point, that correspondence did not refer to theCollateral Agreement.[57] The Collateral Agreement is mentioned for the first time, on my review of theevidence, in the notice of opposition.[58] Mr Cornegé, counsel for Global, said little could be read into Global's solicitornot referring to the legal basis of its continued occupation of De Havilland Drive. Thatsubmission may have been persuasive if the correspondence had referred to the matterssubject to the Collateral Agreement and only failed to characterise its legal status. Itis the failure to refer to the agreement at all which is telling.[59] The absence of any mention of the Collateral Agreement when agreementsother than the one now asserted were being referred to, reinforces my conclusion thatMr Tuhoro's evidence as to the existence of the Collateral Agreement is lacking. I findGlobal has not raised an arguable case in relation to its claim that there was a CollateralAgreement.[60] I do not need to go into issues as to the admissibility of contractual negotiationsor the admissibility of oral statements that may contradict written agreements. Theshort point is that Mr Tuhoro's narrative does not describe an agreement withMr Meredith containing the terms of the Collateral Agreement. I can understand fromMr Tuhoro's narrative why he may have had that expectation, but such does notamount to the Collateral Agreement.Would the Collateral Agreement have been consistent with theDe Havilland Drive Lease?[61] In Kennedy-Grant and Weatherall on Construction Law, the authors note:3There is no difficulty in the concept of a collateral contract that is merelysupplemental to the main contract, but there is some difficulty in the conceptof a collateral contract the terms of which are inconsistent with orcontradictory of the main contract. This problem was considered by the Courtof Appeal in Fletcher Bernard-Smith v Shell BP and Todd Oil Services Ltd4and again in AM Bisley & Co Ltd v Thompson.5 Although the Court did notexpress a final view on either occasion, it did state that there was a strongargument that the principle that a collateral contract cannot be inconsistentwith or contradictory of the main contract does not extend beyond the specialsituation where the alleged collateral contract is in direct conflict with themain object of the main contract.[62] If there had been evidence of the alleged Collateral Agreement, would it havebeen in direct conflict with the main object of the main contract, that is the formalDe Havilland Drive Lease? In my view, it would have been. An essentialcharacteristic of a lease is that its term must be certain or capable of being renderedcertain before the lease takes effect.6 While it is possible for there to be a validequitable lease under s 212 of the Property Law Act 2007 if a lease is described asterminating on the occurrence of a future event, but that does not mean the uncertaintyof term in the alleged Collateral Agreement is not inconsistent with the fixed term ofthe De Havilland Drive Lease. The main contract, that is the De Havilland DriveLease, fixes its term with certainty. Here, the alleged Collateral Agreement, in myview, is inconsistent with that definite term as it would mean the term was no longerabsolute, but shifts from a term of one year to whenever there is compliance with theCollateral Agreement, whichever is the latter.[63] Mr Cornegé submitted the Collateral Agreement may operate to vary the termof the De Havilland Drive Lease. I am not sure how that could be. Mr Tuhoro wasunaware that there was to be a written lease for De Havilland Drive, so he cannot haveintended the Collateral Agreement to amend the subsequent written lease. In thealternative, Mr Cornegé submitted the De Havilland Drive Lease could be seen as the3 Tómas Kennedy-Grant and Weatherall on Construction Law (online ed, LexisNexis) at [51,710].4 Fletcher Bernard-Smith v Shell BP and Todd Oil Services Ltd CA/7B, 14 December 1978. Seealso Lysnar v National Bank of New Zealand Ltd [1935] NZLR 129 (PC) at 140.5 AM Bisley & Co Ltd v Thompson [1982] 2 NZLR 696 (CA).6 Harvey v Pratt [1965] 1 WLR C025.initial manifestation of the Collateral Agreement, leaving the Collateral Agreement torun on after the 12 month term expired. This would be to find the terms of theCollateral Agreement were more complex than claimed. It would be to treat theCollateral Agreement as akin to an agreement to lease, leading to the De HavillandDrive Lease continuing to have life so as to spring up after the expiry of the 12 monthterm if its terms had not been complied with. Finally, it was suggested the effect ofthe Collateral Agreement was that it required the execution of a new lease overDe Havilland Drive. This last possibility would be inconsistent with theDe Havilland Drive Lease being for a fixed term without a right of renewal.[64] Accordingly, if I had considered there was a reasonably arguable evidentiarybasis for the Collateral Agreement, I would have held the Collateral Agreement wasin direct conflict with the main object of the main contract:7Oral evidence that a written or unwritten contract was intended by the partiesto be collateral to a written agreement is admissible, but the collateralagreement must be consistent with the main agreement.(footnote omitted)[65] On Mr Tuhoro's evidence, the alleged Collateral Agreement cannot have beenintended to be collateral to the De Havilland Drive Lease as his evidence is that thetendering of the De Havilland Drive Lease came as a surprise to him – he was notexpecting a further "main" agreement.[66] It follows the plaintiffs are entitled to judgment in respect of their applicationfor vacant possession.Orders[67] I make the following orders:(1) Global Metal Solutions Ltd is ordered to vacate the De Havilland Driveproperty (legally described as Lot 1, DP 341109) within 10 workingdays of this judgment.7 Mathew Downs (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [5.13].(2) Leave is reserved to apply for any necessary consequential orders.(3) The first plaintiff is entitled to costs and if such can not be agreed, thefirst plaintiff is to file costs submissions within five working days ofthe date of this judgment, and with the defendant to reply withina further five working days.[68] That leaves MSM's cause of action in relation to its plant. Counsel are toconsider whether that claim should remain in this Court or be transferred to the DistrictCourt. There also remains the underlying disputes. I would urge both parties to takea commercial approach and attend a mediation to resolve all remaining issues.__________________________________Associate Judge LesterSolicitors:Govett Quilliam, New PlymouthNielsen Law, HamiltonCopy to counsel:S W Hughes QC, Barrister, New Plymouth