JOHN YOUNG FARMING LIMITED v NGĀI TAHU FARMING LIMITED [2019] NZHC 1333

JOHN YOUNG FARMING LIMITED v NGĀI TAHU FARMING LIMITED [2019] NZHC 1333 [13 June 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2019-425-25[2019] NZHC 1333BETWEEN JOHN YOUNG FARMING LIMITEDPlaintiffAND NGĀI TAHU FARMING LIMITEDDefendantHearing: 5 June 2019Appearances: G L Wilkin for plaintiffW J Hamilton for defendantJudgment: 13 June 2019JUDGMENT OF ASSOCIATE JUDGE JOHNSTONTABLE OF CONTENTSIntroduction [1]Background [7]Summary judgment principles [29]The competing cases [31]The implied term [39]Request for information [55]Actual health of the animals [59]Damages [61]Interest [67]Costs [69]Introduction[1] On 6 August 2017, the plaintiff, John Young Farming Ltd, and the defendant,Ngāi Tahu Farming Ltd, entered into a contract pursuant to which John Young Farmingagreed to sell and Ngāi Tahu Farming agreed to purchase 1,000 Friesen risingone-year-old bulls at $3 plus GST per kilogram live weight to be delivered — or,rather, collected — between 1 March 2018 and 31 May 2018. Importantly for presentpurposes, the contract provided:...2. The cattle shall be in good health and free from injury or disease.3. The Purchaser has the right to reject cattle which do not meetspecification.[2] John Young Farming now sues Ngāi Tahu Farming alleging that Ngāi TahuFarming breached the contract when on 18 May 2018 it indicated that it was notprepared to take delivery of the cattle. Summary judgment is sought.[3] John Young Farming's application for summary judgment is supported by anaffidavit sworn by one of the company's directors, Mr John Young.[4] Ngāi Tahu Farming opposes the application for summary judgment. It has filedand served a statement of defence and counterclaim and a notice of opposition. Theseare supported by four affidavits. The first is sworn by the company's Chief ExecutiveOfficer, Mr Andrew Priest, the second by its General Manager – Grazing,Mr Peter Roberts, the third by its General Manager – Finance and Risk,Mr Stephen Ware, and the fourth by an expert witness, Mr Peter Mills, who isemployed by ANZCO Foods as a livestock agent.[5] John Young Farming has filed and served affidavits in reply sworn byMr Young, Mr Layne Morresey, a livestock agent employed by Progressive LivestockLtd, which acted as John Young Farming's agent throughout, and an expert witness,Mr Gene March, who is a consultant employed by LIC FarmWise.[6] Finally, Mr Roberts has sworn a supplementary affidavit, which is said torespond to matters raised for the first time in the reply affidavits filed and served byJohn Young Farming.Background[7] It seems doubtful that any New Zealander has not heard of the bacterial diseaseMycoplasma bovis. It is a disease that, as the name suggests, affects cattle. Once itgets a toe hold on a farm or in a herd its effects are catastrophic.[8] Mr Mills' unchallenged evidence is that prior to mid-2017 there was noreported case in this country. However, on 22 July 2017 samples taken from one herdof cattle spread over two South Canterbury farms tested positive for the disease. Atthat stage there was no suggestion that the disease was present outsideSouth Canterbury. The Ministry for Primary Industries' public announcement aboutthis was made less than a fortnight prior to John Young Farming and Ngāi TahuFarming entering into their contract.[9] As already said, the parties in this case entered into their contract on6 August 2017. John Young Farming then set about acquiring the necessary stock tofulfil its obligations under the contract, which Mr Young says was done, through thecompany's agents, Progressive Livestock, during November and December 2017.[10] Mr Mills' evidence is that on 12 December 2017 the Ministry announced thatherds on three Southland properties had tested positive for Mycoplasma bovis.[11] The affidavit evidence of Mr Priest and Mr Roberts is that Ngāi Tahu Farmingdeveloped a set of protocols to safeguard its farms and stock from the spread ofMycoplasma bovis, which were implemented during late 2017 and early 2018. Theyboth emphasise the importance that Ngāi Tahu Farming placed on the protection of thecompany's herds. The evidence is that Ngāi Tahu Farming's protocols required it toestablish beyond reasonable doubt — my term rather than theirs — that any cattleintroduced to their farms were free of the bacterium.[12] There is no evidence that John Young Farming was informed of the steps thatNgāi Tahu Farming was taking.[13] On 15 March 2018, John Young Farming, through Mr Young, presumably atthe request of Ngāi Tahu Farming, provided a declaration concerning the provenanceof the cattle and the risk of them having been exposed to the Mycoplasma bovisbacterium. In effect, Mr Young's declaration was that "to the best of [his]knowledge and belief " the cattle had not been so exposed.[14] Clearly, that declaration did not satisfy Ngāi Tahu Farming because thecompany then engaged Mr Mills to make further enquiries about the provenance ofthe cattle. In his affidavit, Mr Mills says:47. I phoned Mr Young and had a discussion with him about the herd. Iasked him if he knew where all of the animals had come from. Bythis I meant, did he know what farms the cattle had been born on andreared on before coming to his farm.48. Mr Young replied that he only knew where "about 80%" of theanimals had come from. When I asked for more detail about that, heexplained that for "about 80%" of the animals he knew who the calfrearer was, but the remainder of the herd had been made up of stockpurchased from saleyards and via stock agents.49. Mr Young was also not now able to identify which of the animalscomprised the 80% in respect of which he advised he knew the calfrearer, and which comprised the remaining 20% which were fromentirely unknown origin.[15] Mr Young denies having said or implied that any of the cattle had been acquiredfrom stockyards. I accept his evidence in relation to this. Both he and Mr Morreseyhave given evidence that none of the cattle in question were acquired from stockyardsand it seems very unlikely that Mr Young would have indicated otherwise. In my view,the most likely explanation for this conflict between the evidence of Mr Mills andMr Young is that when asked about the provenance of the animals Mr Young said that,off the cuff, he could not say exactly where they all came from and Mr Mills inferredfrom this that some were acquired, or may have been acquired, from stockyards. Inhis evidence, Mr Young explains that the phone call "came out of the blue" and thathe "struggled to follow what was being said".[16] Presumably Mr Mills reported the substance of the conversation as he recalledit to Ngāi Tahu Farming.[17] The next contact between the parties occurred on 30 April 2018 (two monthsinto the period during which the cattle were to change hands) when Ngāi TahuFarming's livestock agent, Mr David Hardy of Peter Walsh and Co, emailedMr Tim Bell, a representative of John Young Farming's livestock agent, ProgressiveLivestock. Mr Hardy's email was headed "Bull calves to Ngai-Tahu" [sic] and said"Can you please address this! Bloody vets". He attached an email that the evidenceindicated he had received from Ngāi Tahu Farming concerning a query raised by aveterinary surgeon advising that company which said:Hi Dave,The Manager of Ngai-Tahu Farming has asked me to make contact with youwith regard to the upcoming delivery of the bull calves from John Young.What he is asking is that John makes contact with MPI to confirm that in theireyes there won't be any issues with moving the cattle to Balmoral.The question is raised by a local vet questioning whether Ngai-Tahu shouldbe bringing these animals into the Amuri Basin at all.As you can imagine this is a very delicate situation and this vet has put a doubtin the minds of Ngai-Tahu management.The eyes are on corporate farmers!Please let me know how this goes.[18] This email apparently resulted in Mr Bell forwarding to Mr Hardy a copy ofthe NAIT records for the cattle. In his evidence, Mr Mills explains that, in conjunctionwith the industry, the Ministry is involved with a company called NAIT Ltd, thepurpose of which is to operate an animal identification scheme under theNational Animal Identification and Tracing Act 2012.[19] Ngāi Tahu Farming did not regard the NAIT records as providing them withsufficient evidence as to the provenance of the cattle because they did not disclose thefarms from which the cattle came. Mr Roberts' evidence in reply to Mr Morresey'sevidence is that, having received the NAIT records, Ngāi Tahu Farming (he does notsay who) contacted the Ministry to obtain more information as to exactly where thestock came from, and whether the farms in question were suspected of being infectedwith Mycoplasma bovis, but was told that the Ministry could not disclose this.[20] By that stage, Ngāi Tahu Farming was not satisfied that it had sufficientinformation about the cattle to be sure that their introduction to its farms would meetthe protocols it had put in place, but obviously concluded that it could take its enquiriesno further.[21] The next contact between the parties was in the form of a text from Ngāi TahuFarming's agent to John Young Farming's agent. This is the communication referredto at the outset in which John Young Farming was advised that Ngāi Tahu Farmingwas not prepared to take delivery of the cattle. The text said:Call you soon. Ngai Tahu are out on calves based on the clause in the contractthat the animals have to be healthy and free of disease. Their lawyer has statedthat this cannot be proven so they will not be proceeding.[22] Delphic as the text may have been, it is common ground that it constitutednotice to John Young Farming from Ngāi Tahu Farming that the latter was not preparedto proceed with the transaction and thus a repudiation of the same.[23] Correspondence between John Young Farming's solicitors and Ngāi TahuFarming's in-house solicitor followed. It is unnecessary to describe this in detail. Theessential position adopted by Ngāi Tahu Farming is captured in its in-house solicitor'slast letter dated 22 May 2018. Here is what he said as to why Ngāi Tahu Farmingrefused to take delivery of any cattle:Clause 2 of the contract provides that The Cattle shall be in good health andbe free from injury or disease. In accordance with this requirement it isincumbent upon your client to satisfactorily demonstrate that the cattle areindeed in good health and free from disease. Thus far, and despite requests,your client has failed to do this.[24] Faced with Ngāi Tahu Farming's refusal to accept delivery of the cattle,John Young Farming sold them to other buyers through its livestock agent.[25] Mr Young's evidence is that whereas the contract price agreed between theparties would have resulted in a total sale and purchase price of $568,972.95, the bestprices that could be achieved in mid-2018 resulted in a return of $456,957.35.John Young Farming claims the difference of $112,015.60.[26] Mr Young also gives evidence that because John Young Farming had to holdon to the cattle for longer than expected it incurred additional costs in relation tolabour, feed and transport. He puts additional labour costs at $2,300.00 (incl of GST)and additional feed and transport costs at $33,807.80.[27] Finally, Mr Young says that pasture damage caused by the cattle remaining forlonger than planned on the property leased for the purpose resulted in John YoungFarming incurring re-grassing costs of $63,250.00.[28] Taking the GST components out of the claim for damages contained in theprayer for relief, my arithmetic indicates that the total claim for damages is$211,073.40.Summary judgment principles[29] The principles governing summary judgment are now well settled.[30] The plaintiff must satisfy the Court that defendant has no arguable defence.1 Ifthe defendant is to oppose the application for summary judgment on the basis that ithas an arguable defence that it is entitled to run at trial, it will generally need to showthat there is a legal basis for the defence and be able to point to evidence supportingthe same.2 If the defendant is able to do that then the onus is on the plaintiff to satisfythe Court that there is no real question to be tried. Courts will not normally resolvesignificant conflicts of evidence or assess creditability on affidavit evidence, but norwill the Court uncritically accept evidence that is inherently lacking in credibility orinherently improbable. The Court is entitled to take a robust and realistic approachwhere this is warranted. In the end, the Court must be left with no real doubt oruncertainty as to the merits of the plaintiff's claim in order to grant summaryjudgment.31 High Court Rules 2016, r 12.2(1).2 Middleditch v New Zealand Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.3 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].The competing cases[31] John Young Farming's case as pleaded and as described by Mr Young in hisprimary affidavit could not be more straightforward. The company's contention is thatit agreed to sell, and Ngāi Tahu Farming agreed to purchase, the cattle; that it wasready, willing and able to deliver the cattle from 1 March 2018; and that Ngāi TahuFarming repudiated the contract on 18 May 2018 when it indicated that it was notprepared to go through with it.[32] That, Mr Wilkin submitted, is the beginning and end of the case.[33] Ngāi Tahu Farming's case is captured in the following paragraphs of thestatement of defence and notice of opposition:Statement of defence4.2 the agreement contained an implied term that the plaintiff would,if necessary, provide proof that the animals were in good health andfree from injury or disease Notice of opposition3(b) The contract between the plaintiff and the defendant containedessential express and implied terms that:c. If required, the plaintiff would provide evidence to establishthat the cattle are in good health and free from injury ordisease;[34] In short then, Ngāi Tahu Farming's position, as articulated by its in-housesolicitor in correspondence, and as pleaded, is that it was an implied term of the parties'contract that Ngāi Tahu Farming was only obliged to accept the cattle if John YoungFarming was able to provide it with evidence establishing that the cattle were in goodhealth and free from injury or disease.[35] In the course of argument, Mr Hamilton put Ngāi Tahu Farming's case slightlydifferently. He submitted that the implied term required John Young Farming toprovide Ngāi Tahu Farming, on request, with all information it had at its disposal asto the provenance of the cattle, so as to enable Ngāi Tahu Farming to make an informedjudgement about whether it accepted that the cattle were in good health and free frominjury or disease — particularly, of course, from Mycoplasma bovis.[36] Ngāi Tahu Farming's counterclaim — supported by Mr Ware's evidence —alleges that John Young Farming breached this implied obligation and as a resultNgāi Tahu Farming had to purchase cattle from elsewhere at a higher price. It claimsdamages reflecting the difference between the contractual price and the price it had topay.[37] Thus, the defence to John Young Farming's claim, and the basis of Ngāi TahuFarming's counterclaim, are both dependent on the implication of the termpropounded by it. Against that background, it appears to me that the dispositive issuesin the case will be:(a) First, whether the Court should imply into the contract betweenJohn Young Farming and Ngāi Tahu Farming the term propounded bythe latter.(b) Second, if such a term is to be implied, whether John Young Farmingbreached the same, justifying Ngāi Tahu Farming's refusal to proceedwith and (acknowledged) repudiation of the contract.[38] In the context of a summary judgment application, the immediate issue fordetermination resolves itself into whether John Young Farming has established thatthere is no arguable case for the implication of the term propounded, or that thecompany breached the same.The implied term[39] The courts imply terms into contracts in a range of circumstances. Here, mostare irrelevant. The contention advanced by Mr Hamilton on behalf of Ngāi TahuFarming is that the Court should imply the term propounded by it into the contactbetween the parties on the basis that it is an obvious omission.[40] That ground for implying terms into contractual arrangements is one that hasundergone some reformulation over the years.[41] It is unnecessary to go into a detailed analysis of the development of the law.The most appropriate starting point is the principle formulated by MacKinnon LJ inShirlaw v Southern Foundries (1926) Ltd, where his Lordship said:4Prima facie that which in any contract is left to be implied and need not beexpressed is something so obvious that it goes without saying; so that, if, whilethe parties were making their bargain, an officious bystander were to suggestsome express provision for it in their agreement, they would testily suppresshim with a common "Oh, of course!"[42] What is commonly referred to as the officious bystander test was reformulatedby the Privy Council in BP Refinery (Western Port) Pty Ltd v Shire of Hastings, wherethe Privy Council said:5 for a term to be implied, the following conditions (which may overlap)must be satisfied: (1) it must be reasonable and equitable; (2) it must benecessary to give business efficacy to the contract so that no term will beimplied if the contract is effective without it; (3) it must be so obvious that "itgoes without saying"; (4) it must be capable of clear expression; (5) it mustnot contradict any express term of the contract.[43] With the benefit of hindsight, it might be thought that BP Refinery conflatedtwo different circumstances in which a court must consider whether or not to imply aterm, the first being where the propounded term arises naturally from thecircumstances of the case and the language actually used by the parties such that it isso obvious that it goes without saying, and the second being where the term isnecessary to give effect to the commercial intentions of the parties.[44] In Attorney-General of Belize v Belize Telecom Ltd, Lord Hoffmann, on behalfof a unanimous bench of the Privy Council, explained that the BP Refinery conditionsare:6 best regarded, not as a series of independent test which must each besurmounted, but rather as a collection of different ways in which judges have4 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227.5 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 (PC) at 376.6 Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988 at [27].tried to express the central idea that the proposed implied must spell out whatthe contract actually means ...[45] This approach was adopted by the Court of Appeal in Hickman v Turn andWave Ltd.7 In McNeil v Gould, the Court of Appeal cautioned against a strictapplication of the BP Refinery test in cases not involving complicated contractualdocuments. The Court preferred to adopt the formulation provided by a passage fromChitty on Contract, which emphasised that the Shirlaw and business efficacy tests maynot necessarily apply to the same situations: 8An implication of this nature may be made in two situations: first, where it isnecessary to give business efficacy to the contract, and secondly, where theterm implied represents the obvious, but unexpressed, intention of the parties.[46] More recently, the United Kingdom Supreme Court has reconsideredLord Hoffmann's formulation of the BP Refinery test in Marks and Spencer plc v BNPParibas Securities Services Trust Co (Jersey) Ltd, emphasising that the courts willonly imply a term into a contract if it is necessary to make the contract work, and notmerely because it would be reasonable to do so.9 Lord Neuberger also accepted thatobviousness and business necessity can be alternatives in the sense that only one ofthem needs to be satisfied, although he remarked that in practice it would be a rarecase where only one of those two requirements would be satisfied.10[47] That brings me full circle back to Shirlaw and MacKinnon LJ's officiousbystander test, which, in my view, is the most apt test here.[48] On that test, the question the Court must ask itself is whether, having regard tothe context in which the contract was entered into, and the express terms employed bythe parties, it is obvious that the parties' collective intention was to include the impliedterm or terms contended for.7 Hickman v Turn and Wave Ltd [2011] NZCA 100, [2011] 3 NZLR 318 at [247]–[248]. Overturnedby Hickman v Turner and Waverley Ltd [2012] NZSC 72, [2013] 1 NZLR 741, but not on thispoint.8 McNeil v Gould (2002) 4 NZ ConvC 193,557 at [26] per Hammond J. See H G Beale (ed) Chittyon Contracts: Volume 1 General Principles (33rd ed, Sweet and Maxwell, London, 2018) at [14-006].9 Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72,[2016] AC 742 at [23] per Lord Neuberger, [59] per Lord Carnwath and [77] per Lord Clarke.10 At [21].[49] I am far from convinced that if it had been suggested by an officious bystander— let us abandon the man on the Clapham omnibus, who is unlikely to have anythingto say about contracts for the sale of cattle in Southland, and instead think in terms ofthe woman leaning on the stockyard railings observing the business being transactedat a Southland livestock sale — that the contract included a provision to the effectcontended for by Ngāi Tahu Farming, the parties' collective response would have been,as MacKinnon LJ put it: "Oh, of course".[50] For a start, it seems to me to be entirely probable that reasonable people in thepositions of the parties would have had different responses in this case.[51] The view I take is that this case concerns how risk was to be managed inconnection with disease that might not be immediately obvious. The affidavitevidence from Mr Mills is that testing for Mycoplasma bovis was possible but difficultat the time because of the pressure on resources following the outbreak of the disease.The parties entered into a contract that did not expressly address that risk. In thosecircumstances, it was for each party to manage the risk that it perceived itself to haveunder the contract. I cannot see why it should be regarded as so obvious as to gowithout saying that that risk ought to be imposed entirely on John Young Farming.[52] One perfectly rational response to our officious bystander would have been tosay: No, certainly there is an express obligation on the part of John Young Farming todeliver cattle that are healthy and free from injury and disease and an entitlement onthe part of Ngāi Tahu Farming to reject injured and diseased beasts; no doubtJohn Young Farming would be liable if it delivered injured or diseased cattle; but, theparties are left to manage their own risk in relation to undetected disease as they seefit; either could, for example, have insisted on arranging quarantine and testing beforeagreeing to give or take delivery.[53] If one were to apply the BP Refinery test, it seems to me that the argumentbeing advanced by Ngāi Tahu Farming would fail on a number of counts. I do notview the implied term contended for as being reasonable and equitable, as it benefitsNgāi Tahu Farming over John Young Farming for no explicable reason. It is certainlynot necessary to ensure that the contract is efficacious from a business perspective, asthe contract appears to me to be entirely effective without it, once one recognises thatit was open to either party to manage their own risks as they perceived them to be.And, as already said, I do not perceive the clause suggested as being so obvious thatit goes without saying.[54] For those reasons, I am satisfied that John Young Farming has established thatNgāi Tahu Farming has no reasonable prospect of successfully persuading the Courtthat the clause it propounds should be implied into contract.Request for information[55] As Mr Hamilton formulated it in the course of argument, the implied obligationon the part of John Young Farming would be that if requested to do so it would provideNgāi Tahu Farming with all information available to it in relation to the provenance ofthe cattle — in particular, from where they had been acquired by John Young Farming— so as to enable Ngāi Tahu Farming to make an informed decision as to the risk ofMycoplasma bovis in the herd.[56] Even if I were to conclude that such a term could and should be implied intothe parties' contract, I am not satisfied that it would assist Ngāi Tahu Farming.[57] In my judgement, at no stage was a clear request made of John Young Farmingthat would have triggered an obligation to provide the information that Ngāi TahuFarming now says that it was looking for. All this required was a letter, email or othercommunication explaining and articulating its requirements. Nothing of the sort wasin evidence. Certainly, Mr Mills did not do this in his telephone conversation withMr Young, even on his description of what he said — "I asked him if he knew whereall the animals had come from." Similarly, the request that Mr Hardy passed onon 30 April 2018 does not constitute such an explanation and request.[58] From the evidence of Mr Young and Mr Morresey, it is clear that John YoungFarming had access to detailed information as to the provenance of the cattle. Thereis no reason at all to think that John Young Farming would not have provided this toNgāi Tahu Farming had it been requested in clear terms.Actual health of the animals[59] Although it was not clearly pleaded, and not the focus of argument before me,I refer briefly to the submission advanced by Mr Hamilton that there is a genuinedispute of fact over the actual health status of the cattle in May 2018 that must betested at trial. It might have been open to Ngāi Tahu Farming to argue that John YoungFarming would have been in breach of its express obligation under the contract tosupply cattle that were in good health and free from injury or disease by offering tosupply cattle that were in fact infected by Mycoplasma bovis (or any other ailment forthat matter). That would have entitled Ngāi Tahu Farming to reject the cattle inaccordance with clause 3 of the contract, arguably irrespective of whether that wastheir stated reason for doing so at the time.[60] The difficulty, however, is that there is no evidential foundation for such anagreement. On the contrary, Mr Young's evidence is that he has received nocomplaints from the purchasers, and it would likely be impossible to conduct tests onthe cattle at this stage. I am satisfied that this line of argument would have noreasonable prospect of success at trial.Damages[61] That leaves the question of damages.[62] Although Mr Mills is correct that the claim as currently formulated does notfactor in any obligation on the part of John Young Farming to pay commission to itslivestock agent, it does not seem likely to me that this changes the net loss suffered byJohn Young Farming. The commission Mr Mills refers to is said to be charged on aper weight basis. That being the case, the commission would equally decrease theamount recovered from the subsequent sales by the livestock agent to other purchasers,presuming the figures provided by Mr Young account for this matter consistently, asone would expect. I am therefore not prepared to reduce the starting figure from$568,972.95 to $540,524.29 as Mr Mills suggests is appropriate.[63] Although I accept Mr Mills' evidence that prices in excess of $2.70 perkilogram were being achieved in June 2018, Mr Mills takes no account of the fact thatJohn Young Farming faced a situation in which it was compelled to divest itself of thislivestock as fast as possible in what must have come close to fire sale circumstances.It may well be that the prices achieved — between $2.35 and $2.50 per kilogram —owe something to that.[64] Mr Mills' evidence relating to the amount of feed that John Young Farmingshould have had to provide is not especially helpful. The claim is for 7 kilograms perday. Mr Mills says that the cattle would be unlikely to need more than 6 kilogramsper day. I see no analysis of allowances for wastage, and for the "gruesome weatherconditions" Mr Young says persisted at the farm during May and July 2018. In theend I am prepared to accept Mr Young's evidence as to how much additional baleagehe actually required.[65] As to the claim for pasture damage, whilst Mr Mills expresses some scepticismin relation to this, given Mr Young's unchallenged evidence of the weather conditionshe (and the cattle) faced at the time, I accept his evidence as to additional damagecaused by the cattle remaining on the property for longer than expected and the costhe incurred to rejuvenate the pasture. In this regard, I record that his evidence issupported by that of Mr March.[66] The conclusion I have reached is that Ngāi Tahu Farming has no tenabledefence to this claim and on that basis I enter summary judgment in favour of theplaintiff for the full amount of its claim as I have calculated it to be — $211,073.40.Interest[67] In its prayer for relief, John Young Farming claims "[i]nterest on the sum at theplaintiff's overdraft rate of 8%". At the conclusion of his submissions, Mr Wilkinreiterated that the plaintiff was seeking interest on that basis. I asked him whether thatclaim was pleaded and he referred me to the plaintiff's prayer for relief. However, theclaim is not pleaded in the body of the statement of claim and nor is there any evidencesupporting any such claim. The principle is that interest is allowed pursuant to theInterest on Money Claims Act 2016 unless interest on some other basis is pleaded andestablished. It has not been here.[68] The plaintiff will have interest at the rate provided for in the Interest on MoneyClaims Act.Costs[69] The plaintiff seeks "[t]he costs of and incidental to these proceedings on asolicitor/client basis".[70] The basis for seeking indemnity costs is apparently that in the correspondencebetween the parties prior to the commencement of proceedings the plaintiff saidthrough its solicitors that if it had to make a claim it would seek such costs.[71] I am not satisfied that the plaintiff is entitled to indemnity costs. The generalprinciple is that costs follow the event. In other words, the successful party is entitledto a costs award according to scale and an intending plaintiff cannot alter that positionsimply by asserting that it will claim indemnity costs prior to commencingproceedings.[72] Furthermore, from the outset this claim has been for a little over $200,000, wellwithin the jurisdiction of the District Court.[73] The plaintiff will have its costs in accordance with the District Court Rules2014, together with such disbursements as may be allowed by the Registrar.11Associate Judge JohnstonSolicitors:AWS Legal, Invercargill for plaintiffChapman Tripp, Christchurch for defendant11 High Court Rules 2016, r 14.13.