BODY CORPORATE 344862 (WELLINGTON) V E-GAS LTD AND ANOR HC WN CIV 2007-485-002168

BODY CORPORATE 344862 (WELLINGTON) V E-GAS LTD AND ANOR HC WN CIV 2007-485-002168

Dobson J's 23 September 2008 summary judgment declared that the Allocation Agreement and incorporated Reconciliation Code imposed enforceable obligations on the defendants after 1 October 2006; that issue was distinctly put, was fundamental to the declaration and was finally determined on the summary judgment application, so the defendants are issue‑estopped from denying enforceability for the post‑2006 period; therefore the pleadings denying that enforceability are an abuse of process and must be struck out; the defendants' bald affidavit assertion of an agreement not to renew lacked particularity and substance and did not rebut the estoppel.

Citation
openlaw-33c631df_ca37_45dd_b399_bc2679fb5d9e.pdf
Parties
First Plaintiff: Body Corporate 344862 (Wellington); Second Plaintiff: Alamir Company Limited; Third Plaintiff: Nova Gas Limited; Fourth Plaintiff: K2G Limited formerly Kopi 2 Go Limited; First Defendant: E-Gas Limited; Second Defendant: E-Gas 2000 Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 July 2010
Procedural Posture
Civil Strike Out Application / Interlocutory Application (strike Out)
Outcome
Court ordered that portions of the defendants' statement of defence and counterclaim denying enforceability of the Allocation Agreement for the period beyond 1 October 2006 be struck out as an abuse of process.
Legal Topics
Strike Out, Issue Estoppel, Res Judicata, Summary Judgment, Equitable Estoppel, Abuse of Process, Declaration
Civil Procedure Contract Law Equity Strike Out Issue Estoppel Res Judicata Summary Judgment Equitable Estoppel +2 more

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Parties

Body Corporate 344862 (Wellington)

First Plaintiff

Alamir Company Limited

Second Plaintiff

Nova Gas Limited

Third Plaintiff

K2G Limited formerly Kopi 2 Go Limited

Fourth Plaintiff

E-Gas Limited

First Defendant

E-Gas 2000 Limited

Second Defendant

Procedural Posture

Civil Strike Out Application / Interlocutory Application (strike Out)

Legal Issues

  1. 1 Whether Dobson J's 23 September 2008 summary judgment/ declaration finally determined that the Allocation Agreement rolled over and bound defendants after 30 September 2006 (issue estoppel/res judicata)
  2. 2 Whether equitable estoppel arises from representations made in the summary judgment proceedings
  3. 3 Whether parts of the defendants' statement of defence and counterclaim that deny enforceability post-1 October 2006 constitute an abuse of process and should be struck out

Ratio Decidendi

Dobson J's 23 September 2008 summary judgment declared that the Allocation Agreement and incorporated Reconciliation Code imposed enforceable obligations on the defendants after 1 October 2006; that issue was distinctly put, was fundamental to the declaration and was finally determined on the summary judgment application, so the defendants are issue‑estopped from denying enforceability for the post‑2006 period; therefore the pleadings denying that enforceability are an abuse of process and must be struck out; the defendants' bald affidavit assertion of an agreement not to renew lacked particularity and substance and did not rebut the estoppel.

Court Disposition

Court ordered that portions of the defendants' statement of defence and counterclaim denying enforceability of the Allocation Agreement for the period beyond 1 October 2006 be struck out as an abuse of process.

Orders

  • Strike out all provisions of the statement of defence and counterclaim that deny the enforceability of the Allocation Agreement for the period beyond 1 October 2006
  • If counsel cannot agree on precise paragraphs to be removed, file memoranda in support, opposition and reply at seven‑day intervals for the court to decide