WATERCO (NZ) LIMITED V SIMPSON HC AK CIV-2012-404-2863

WATERCO (NZ) LIMITED V SIMPSON HC AK CIV-2012-404-2863

Clause 13 (mediation) applied because no immediate termination under clause 8B(b) occurred (no termination notice served); parties had not complied with clause 13 so a limited stay to permit mediation (approximately 80 days) was justified; filing a notice of opposition did not constitute waiver of the contractual mediation right in these circumstances; directions issued for post-stay filings and an adjournment to the summary judgment list if mediation fails.

Citation
openlaw-95d106f8_96ab_46c6_ad98_579ab3039abe.pdf
Parties
Plaintiff: WATERCO (NZ) LIMITED; First Defendant: DAVID ALAN SIMPSON; Second Defendant: COURTNEY JAMES RYAN
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 September 2012
Procedural Posture
Summary Judgment Application / Preliminary Issue on Stay Pending Contractual Mediation
Outcome
Proceeding stayed to allow contractual dispute resolution (mediation) to be attempted; stay limited and conditional directions given for continuation if mediation fails
Legal Topics
Summary Judgment, Stay, Mediation Clause, Abuse of Process, Guarantee, Termination Clause, Receivership, Costs
Contract Law Civil Procedure Franchising Alternative Dispute Resolution Insolvency/receivership Summary Judgment Stay Mediation Clause +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

WATERCO (NZ) LIMITED

Plaintiff

DAVID ALAN SIMPSON

First Defendant

COURTNEY JAMES RYAN

Second Defendant

Procedural Posture

Summary Judgment Application / Preliminary Issue on Stay Pending Contractual Mediation

Legal Issues

  1. 1 Does clause 13 dispute resolution (mediation) bar court proceedings and therefore require a stay?
  2. 2 Was clause 8B(b) immediate termination triggered by receivership so as to displace clause 13?
  3. 3 Did defendants submit to jurisdiction by filing a notice of opposition and thereby waive clause 13?

Ratio Decidendi

Clause 13 (mediation) applied because no immediate termination under clause 8B(b) occurred (no termination notice served); parties had not complied with clause 13 so a limited stay to permit mediation (approximately 80 days) was justified; filing a notice of opposition did not constitute waiver of the contractual mediation right in these circumstances; directions issued for post-stay filings and an adjournment to the summary judgment list if mediation fails.

Court Disposition

Proceeding stayed to allow contractual dispute resolution (mediation) to be attempted; stay limited and conditional directions given for continuation if mediation fails

Orders

  • Proceeding stayed until 4 December 2012
  • If matter not settled by 4 December 2012 and a notice is served in accordance with clause 13(7) of the franchise deeds, an amended notice of opposition and affidavits in support and, if appropriate, a counterclaim shall be filed and served by 5 December 2012