KINGSBEER TRANSPORT LTD v MARTIN-BROWER NEW ZEALAND [2022] NZHC 2931

KINGSBEER TRANSPORT LTD v MARTIN-BROWER NEW ZEALAND [2022] NZHC 2931 [9 November2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2499[2022] NZHC 2931BETWEEN KINGSBEER TRANSPORT LIMITEDPlaintiffAND MARTIN-BROWER NEW ZEALANDDefendantHearing: On the papersCounsel: D M Fraundorfer, A G Needham and S A Stretton for plaintiffS S Cook and M J Cassaidy for defendantJudgment: 9 November 2022Reissued: 8 December 2022SUPPLEMENTARY JUDGMENT OF JAGOSE JThis judgment was delivered by me on 9 November 2022 at 11.00am.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Holland Beckett, TaurangaBuddle Findlay, Auckland[1] My 16 December 2021 judgment dismissed all claims and counterclaimsbetween the plaintiff ("KTL") and defendant ("MBNZ"), except for KTL's sixth causeof action in quantum meruit, claiming reimbursement of its expenses in acquiringleased equipment, which I reserved "for determination after the parties' advice of theirnegotiations in relation to KTL's invoice 136 and its further expenses claim".1 KTL'squantum meruit claim also related to invoices 134 and 135, which I held to fail.2I directed the parties file advice "of the result of the negotiations (not of their course),and if my supplementary judgment remains required" by 31 January 2022.Delay[2] On more recently hearing an appeal from my judgment, the Court of Appealenquired of the Registry as to that advice, which brought counsel's joint memorandumdated 28 January 2022 to my attention yesterday. Counsel advised "[t]he parties areunable to reach an agreed position in respect of these outstanding issues", and soughtmy supplementary judgment. The memorandum is annotated on its cover, presumablyby the Registry, "Pending outcome of appeal to COA by Kingsbeer". That is incorrect,but may explain why the memorandum was not earlier referred to me.[3] I very much regret the delay. If I had considered its absence in the interim atall, it was only to confirm my supplementary judgment was not required. I reinforce,notwithstanding advocates' possible superstitions, counsel are encouraged to enquireof the Registry as to progress of outstanding judgments.3Supplementary judgment[4] I now turn to the subject of my supplementary judgment.[5] Invoice 136 was for a sum of $14,161.79 issued in relation to services providedby KTL to MBNZ during June 2018, reduced to $13,412.26 by the plaintiff's expertaccountant, Paul Manning, for the purposes of the claim. He also identified further1 Kingsbeer Transport Ltd v Martin-Brower New Zealand [2021] NZHC 3494 at [111]–[113].2 At [102].3 See Courts of New Zealand "Inquiry about the status of reserved judgments"<www.courtsofnz.govt.nz/the-courts/high-court/high-court-judgment-delivery-expectations-inquiry-process-and-recent-judgment-timeliness/#Inquiry>.expenses for recovery from MBNZ in the amount of $33,686.47.4 The defendant'sexpert accountant, Mike Lowe (to whom I misreferred as "Mike Rowe", now with myapology), would have reduced those sums respectively to $5,610 and $4,311.5 Inconference between the experts, Mr Manning's Invoice 136 sum further was reducedto $10,142.[6] I had "some doubts if, given the parties' effective agreement to negotiatereimbursement of short-term expenses, a claim in quantum meruit may stand hereeither".6 That was to cross-reference my determination the parties' agreement left 'noroom' to revisit the balance of earlier invoices,7 referring back again to earlierexplanation:8If, in relation to the relevant subject matter, there is a valid and enforceablecontract in force between the parties, then the contract and only the contractcan speak: the rights and liabilities of the parties are regulated only by thecontract: there is no room for quasi contractual rights.I indicated any supplementary judgment would:9 accept in principle MBNZ is not entitled to the benefit of KTL's effort(including expenditure) on its behalf without a concomitant obligation to payreasonable compensation for it. But MBNZ has paid KTL on invoice for itsdelivery services.[7] The parties' contractual negotiation having failed, in circumstances in whichthe experts agree MBNZ was required to pay KTL something more for its services,there is room for 'the contractual kind of quantum meruit' in an award of "reasonablecompensation to be paid for services where the level of remuneration has not beenagreed".10[8] I am not prepared to endorse KTL's claim for further expenses, essentially asspringing from its expert's subsequent analysis (even if accepted in minor part by the4 At [94].5 At [95].6 At [100].7 At [99].8 At [97], citing Seton Contracting Co Ltd v Attorney-General [1982] 2 NZLR 368 (HC) at 376–377.9 At [101].10 At [96], citing Worldwide NZ LLC v NZ Venue and Event Management Ltd [2014] NZSC 108,[2015] 1 NZLR 1 at [27], n 24 (citing Harrison v Franich [2007] NZCA 538 at [32]; and Benedettiv Sawiris [2013] UKSC 50, [2013] 3 WLR 351] at [17]).other expert), rather than any claim independently raised by KTL for servicesrendered. Without another basis for calculation of payment on invoice 136,I apprehend what is 'reasonable' to be somewhere between the positions contended bythe experts. Picking a midpoint disregards the grounds for the experts' positions.Nonetheless it has its merits in Solomonic efficiency, also in determining the parties'respective liabilities. I calculate that midpoint to be $7,876.00.Result[9] On KTL's sixth cause of action, I order MBNZ pay KTL $7,876.00.Other issues[10] I leave it to counsel if my supplementary judgment should be referred to theCourt of Appeal. I also reserved costs "until after determination of KTL's sixth causeof action". In my preliminary view, costs now may better be reserved for determinationin accordance with the Court of Appeal's decision. If my view is not accepted by theparties, or they cannot otherwise agree, I reserve costs for determination on shortmemoranda each of no more than five pages — annexing a single-page table settingout any contended allowable steps, time allocation and daily recovery rate — to befiled and served by MBNZ within ten working days of the date of this judgment, withany response or reply to be filed within five working day intervals after service.—Jagose J