GOUGH FINANCE LTD V C & J HARVESTING LTD AND ORS HC ROT CIV 2006-463-914

GOUGH FINANCE LTD V C & J HARVESTING LTD AND ORS HC ROT CIV 2006-463-914

Given the coordinated conduct of the Gough group in supplying equipment and arranging finance, the arguable account of inducement and representations by GGHL, the real risk of severe prejudice to the defendants if summary judgment were entered while they could not pursue indemnity/contribution, and the lack of...

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Citation
openlaw-43a7b680_a0a8_46b7_b9c6_7b2475126a6a.pdf
Parties
Plaintiff: Gough Finance Ltd; First Defendant: C & J Harvesting Ltd; Second Defendant: C L Mitchell; Third Defendant: J R Mitchell; Fourth Defendant: J R Mitchell; Intended Third Party: Gough Gough Hamer Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 September 2007
Procedural Posture
Contract Summary Judgment and Joinder Application / Application for Leave to Issue Third Party Notice Under R 75 of the High Court Rules; Summary Judgment Proceeding Pending
Outcome
Application granted. Leave granted for defendants to issue a third party notice joining Gough Gough Hamer Ltd.
Legal Topics
Summary Judgment, Third Party Joinder (r 75), Misrepresentation, Merchantable Quality, Indemnity/contribution, Agency
Contract Law Civil Procedure Commercial Law Summary Judgment Third Party Joinder (r 75) Misrepresentation Merchantable Quality Indemnity/contribution +1 more

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Parties

Gough Finance Ltd

Plaintiff

C & J Harvesting Ltd

First Defendant

C L Mitchell

Second Defendant

J R Mitchell

Third Defendant

J R Mitchell

Fourth Defendant

Gough Gough Hamer Ltd

Intended Third Party

Procedural Posture

Contract Summary Judgment and Joinder Application / Application for Leave to Issue Third Party Notice Under R 75 of the High Court Rules; Summary Judgment Proceeding Pending

Legal Issues

  1. 1 Whether leave under r 75 should be granted to join Gough Gough Hamer Ltd as a third party during pending summary judgment proceedings
  2. 2 Whether representations and conduct of supplier (GGHL) can be treated as agentically attributable to the finance company and incorporated into the lease
  3. 3 Whether denial of joinder would unfairly prejudice defendants because of potential inability to pursue indemnity/contribution while facing summary judgment

Ratio Decidendi

Given the coordinated conduct of the Gough group in supplying equipment and arranging finance, the arguable account of inducement and representations by GGHL, the real risk of severe prejudice to the defendants if summary judgment were entered while they could not pursue indemnity/contribution, and the lack of material prejudice to the plaintiff from a short delay, the Court exercised its discretion to grant exceptional leave under r 75 to join GGHL as a third party and thereby permit the defendants' third party claim to proceed.

Court Disposition

Application granted. Leave granted for defendants to issue a third party notice joining Gough Gough Hamer Ltd.

Orders

  • Leave granted to the defendants to issue a third party notice under r 75 joining Gough Gough Hamer Ltd as third party
  • Parties to agree costs or, failing agreement, file concise memoranda on costs within 21 days