IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5667 [2013] NZHC 273

BETWEEN	EZCCC HOLDINGS LIMITED Plaintiff

AND	TRANSPORT DYNAMICS LIMITED First Defendant

AND	MICHAEL JASPER HERRICK Second Defendant

Hearing:	4 February 2013

Appearances: P M Hunter for the Defendants in support
P Craighead for the Plaintiff to oppose

Judgment:	21 February 2013

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on   21 February 2013 at 9:00am
pursuant to Rule 11.5 of the High Court Rules.

...................................
Registrar/Deputy Registrar

Solicitors:
Alistaire Hall, P O Box 76154 Manukau, Auckland 2241, for Plaintiff
Email:	enquiries@lawforall.co.nz
Simpson Western (P M Hunter), Private Bag 93533Takapuna 0740, for Defendants
Email:	paulh@simpsonwestern.co.nz
Copy for:
Peter Craighead, P O Box 97281 Manukau, Auckland 2241
Email:	peter@petercraighead.co.nz

EZCCC HOLDINGS LIMITED V TRANSPORT DYNAMICS LIMITED HC AK CIV-2011-404-5667 [21
February 2013]

[1]       Mr Charlton Chambers is a truck driver.  He is the director and shareholder of EZCCC Holdings Ltd.   Through that company, Mr Chambers drove a Kenworth truck, registration DUY21, under contract for Transport Dynamics Ltd, a freight and logistics company.  Mr Chambers drove the truck in December 2010 and in January, February and March 2011.   Transport Dynamics Ltd paid EZCCC Holdings Ltd
$7,792.56 for January 2011, but nothing for the other months.  Transport Dynamics Ltd says that it did not have to pay for Mr Chambers’ driving in December 2010, but in any event the costs charged to the truck exceeded what the truck had earned by
$141.94.  It also says that the costs charged to the truck in February 2011 exceeded its earnings by $31.79 and in March 2011 by $2,708.74.

[2]       In April 2011, Mr Chambers gave up.  He complains that the truck was not mechanically sound.  He was not making any money.  He parked the truck outside Transport Dynamics Ltd and suspended driving.  Transport Dynamics Ltd cancelled its contract with him.

[3]       EZCCC Holdings Ltd is suing Transport Dynamics Ltd for misrepresentation under the Contractual Remedies Act 1979 and for misleading or deceptive conduct under the Fair Trading Act 1986 and is suing its director, Mr Herrick, for breach of the Fair Trading Act.

[4]       Transport Dynamics Ltd and Mr Herrick have applied for summary judgment and to strike out the claim by EZCCC Holdings Ltd.   Alternatively, they ask for security for costs.

Factual background

[5]       Transport Dynamics Ltd provides freight services to customers through a mixture of employed drivers and owner/drivers (independent contractors).   During
2010  Mr  Chambers  approached  Mr  Herrick  to  see  if  he  could  become  an owner/driver with Transport Dynamics Ltd through his company, EZCCC Holdings Ltd.  At that time Transport Dynamics Ltd had a freight run, delivering containers to

customers in Auckland,  which  Mr  Herrick  considered  would  be suitable for  an owner/driver.  It also had a Kenworth truck which it considered would be suitable, although at the time the Kenworth was used on other operations.  At the outset, the parties envisaged that EZCCC Holdings  Ltd would buy the truck outright from Transport Dynamics Ltd, funding the purchase with finance from a finance company, and would drive the truck under an owner/driver contract with Transport Dynamics Ltd.  However EZCCC Holdings Ltd was not able to obtain the finance required to buy the truck.

[6]       Transport Dynamics Ltd then offered to finance the truck itself by entering into a finance arrangement with a finance company, Face Finance Ltd, on the basis that EZCCC Holdings Ltd would then meet the obligations of Transport Dynamics Ltd to Face Finance Ltd. This took some time to arrange.  Face Finance Ltd was part of the South Canterbury Finance group of companies and was in receivership.  Face Finance Ltd approved the arrangement in late December 2010.  Face Finance bought the truck from Transport Dynamics Ltd and Transport Dynamics Ltd, in turn, entered into an operating lease agreement with Face Finance.   This required 36 monthly rental payments of $6,190.13 (GST inclusive).  Transport Dynamics Ltd also entered into a separate put option agreement with Face Finance.  The effect of this was that Transport Dynamics Ltd had to purchase the truck from Face Finance at the end of the operating lease for a final payment of $123,050 (GST inclusive).

[7]       Mr Chambers began driving the truck in late November 2010.  He started by driving the truck together with an experienced driver of Transport Dynamics Ltd, but later took over the driving himself.   There is a disagreement between the parties about this period.   Transport Dynamics Ltd says that throughout December, the arrangement was that Mr Chambers was undergoing training and he did not have to be paid.  Mr Chambers says that he started driving as a contractor on 10 December
2010.

[8]       The position for Transport Dynamics Ltd is that EZCCC Holdings Ltd did not start as an owner/driver until after the agreements with Face Finance Ltd had been signed.  Transport Dynamics Ltd has a standard form of owner/driver’s licence

agreement.   The document has a date of 1 January 2011 but it was not actually signed until 29 March 2011.

[9]       Mr Chambers says that EZCCC Holdings Ltd was to obtain ownership of the truck, but there was no written agreement recording that arrangement.  He also says that there were mechanical problems with the truck. The truck broke down.  It had to spend time in the workshop.

[10]     EZCCC Holdings Ltd’s claims for misrepresentation and breach of the Fair Trading Act are based on three documents Mr Herrick gave Mr Chambers during discussions and negotiations:

(a)       a valuation of the truck by Southpac Trucks Ltd, dated 4 February

2010;

(b)       a second truck valuation by Southpac Trucks Ltd dated 5 October

2010; and

(c)       a vehicle revenue analysis report.

[11]     Southpac  Trucks  Ltd  is  a  Kenworth  importer  and  distributor.    It  is  an authorised service agent.  It had been responsible for servicing the truck since it was new.   The truck was a 2007 model.   The first valuation says that its mileage was
380,000 kilometres.   The valuation gave a current market value of $244,000 plus

GST. The report included this:

This truck has been inspected and found to be in excellent condition.  ...

This  valuation has been  specifically prepared for the  client for the  sole purpose to use for the party to whom it is addressed.  Southpac Trucks Ltd accepts no liability for use of this valuation.

[12]     The second valuation is in similar format to the first except that the mileage is recorded as 431,260 kilometres and the market valuation is given as $214,500 exclusive of GST.  In particular, the statement that the truck had been inspected and was found to be in excellent condition was repeated.

[13]     Since then, Mr Chambers has seen the service history for the truck.   Both Southpac Trucks Ltd and Transport Dynamics Ltd had records of the truck’s service history.   Mr Chambers says that in light of that service history, the claim that the truck was in excellent condition cannot have been true. The defendants dispute that.

[14]     The vehicle revenue analysis shows the earnings for another truck, EQC37, from 1 April 2009 to 31 March 2010.  The earnings are said to be $506,701.  With that analysis there were also schedules showing certain costs charged against the vehicle under the headings “Sundry direct costs”, “fuel and oil”, “truck repairs and maintenance”, “tyres” and “road user charges”.   Mr Herrick says that those would not be all the charges incurred by the truck.   He said that he made this clear to Mr Chambers when he gave him the vehicle revenue analysis.  He also says that this document was provided to assist Mr Chambers with raising finance.   While the document related to another vehicle, that vehicle had been used on container deliveries in Auckland, the work intended for DUY21, whereas DUY21 had not been used for that sort of work.  Mr Chambers says the document was given to him as a forecast of the earnings he could hope for. As such, it was misleading.

[15]     Under  its  cause  of  action  against  Transport  Dynamics  Ltd  under  the Contractual Remedies Act, EZCCC Holdings Ltd claims damages under two heads of loss.  The first is for $690,542.24 as earnings that would have been made over four years, but it acknowledges that Transport Dynamics Ltd may be able to claim certain deductions.  The second is for $214,500 as the value of the truck which it would otherwise have received if everything had gone as intended.

[16]     For its claims against Transport Dynamics Ltd and Mr Herrick under the Fair

Trading Act, it claims $15,773.13 as trading losses incurred during the contract.

Summary judgment and strike-out principles

[17]     The parties appropriately referred to the well-established principles for strike-
out applications and for defendants’ summary judgment applications, and the leading authorities:  for  strike-out  applications,  Attorney-General  v  Prince1   and  Couch  v

1	Attorney-General v Prince [1998] 1 NZLR 262 (CA).

Attorney-General,2  and for defendants’ summary judgment applications:  Westpac Banking Corporation v M M Kembla New Zealand Ltd3  and Attorney-General v Jones.4   It is appropriate to record some further matters.

[18]     In Westpac Banking Corporation v M M Kembla New Zealand Ltd, the Court of Appeal said:

[62]      Application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot competently be concluded from affidavits.  It may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence.   Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and legal issues. Although a legal point may be as well decided on summary judgment application as at trial if sufficiently clear (Pemberton v Chappell [1987]
1 NZLR 1),  novel  or  developing points  of law  may require the  context provided by trial to provide the court with sufficient perspective.

[63]      Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff’s claim.   That would permit a defendant, perhaps more in possession  of  the  facts  than  the  plaintiff (as  is  not uncommon  where  a plaintiff is the victim of deceit), to force on the plaintiff’s case prematurely before completion of discovery or other interlocutory steps and before the plaintiff’s evidence can reasonably be assembled.

[64]      The defendant bears the onus of satisfying the Court that none of the claims can succeed.  It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own.   Even then, it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed.   It is not enough that they are shown to have weaknesses.  The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.

[19]     Strike-out applications are primarily decisions on the pleadings.   Affidavit evidence has a limited role.   For this the defendants cited Attorney-General v McVeagh.5   There is also useful guidance from the decision of Tipping J in Marshall
Futures Ltd v Marshall:6

2	Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.
3	Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).
4	Attorney-General v Jones [2004] 1 NZLR 433 (PC).
5	Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
6	Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 at 323–324.

An application such as the present is determined primarily on the pleadings. For that purpose the allegations of fact made by the plaintiff must be treated as correct. ...

The reason why the Court allows affidavits to be read for and against such an application is that although the pleadings as they stand may not for one reason or another disclose a cause of action, the Court may be able to discern from the affidavits that properly pleaded an arguable cause of action could be raised.  If that is so the Court may, instead of striking out the pleading, give the plaintiff an opportunity to amend so as to plead his tenable cause of action properly.  There may of course be circumstances where the plaintiff’s pleading is so bad that the Court should not allow this opportunity and simply strike out the relevant pleadings leaving it to the plaintiff to come again if within time and capable of putting his house in order.

[20]     In this case, the defendants have filed extensive affidavit evidence in support of their applications.  The extent of the wide range of their evidence goes beyond what is required solely for a strike-out application.  Because of the reliance on such affidavit evidence, the summary judgment application is the more important one for the defendants.

Leave to bring summary judgment application out of time

[21]     The defendants need leave to apply for summary judgment out of time.7    In October 2012 the parties filed a joint memorandum seeking a priority fixture for the present applications.  Rodney Hansen J accepted the submissions made in the joint memorandum and gave this matter a fixture for 4 February 2013.   In their joint memorandum, the parties set out arguments why the summary judgment application could be heard at this stage in the proceeding.  Since then, both parties have prepared fully for the present application.

[22]     Against that background, especially the lack of opposition from the plaintiff, it would be improper now to refuse leave.   Leave is accordingly granted under r 12.4(3).

Summary judgment and strike-out applications

[23]     The defendants’ submissions attacked  the merits of the case for EZCCC

Holdings Ltd widely.  It included the following submissions:

7	High Court Rules, r 12.4(3).

(a)	EZCCC Holdings Ltd could not claim for the value of the truck;

(b)     There were provisions in the contractor’s licence agreement that precluded the claim by EZCCC Holdings Ltd;

(c)       There were causation issues, namely that Mr Chambers had brought EZCCC Holdings Ltd’s losses on it by suspending operations, leading to a proper cancellation;

(d)       The damages claimed under s 6 of the Contractual Remedies Act were hopelessly wrong.

[24]     However, Mr Hunter accepted that while those matters went to the merits and were relevant to the application for security for costs, they were not suitable for a strike-out or summary judgment application.  For those applications, he focused on the  vehicle  valuations  given  by  Southpac  Trucks  Ltd,  and  the  vehicle  revenue analysis report.   The defendants take a document-based approach.   Their case is broadly that an examination of the documents is sufficient to show that EZCCC Holdings Ltd cannot hope to succeed in its claims.

Southpac Trucks Ltd valuations

[25]     The defendants’ case is that the documents from Southpac Trucks Ltd are not to be attributed to them.  They say that Southpac Trucks Ltd’s documents are simply expressions of opinion and that Southpac Trucks Ltd had disclaimed any responsibility to anyone except Transport Dynamics Ltd.  By making the reports by Southpac Trucks  Ltd  available to  Mr Chambers  and  EZCCC  Holdings  Ltd,  the defendants did no more than pass on information received. A statement made by a third party is not a misrepresentation, when the person passing the information on does not adopt it as their own.  For the Contractual Remedies Act, the defendants
cited Aldridge v Boe8 and for the claim under the Fair Trading Act they relied on Red

Eagle Corporation Ltd v Ellis9  and Mainland Products Ltd v BIL (NZ) Holdings

8	Aldridge v Boe HC Auckland CIV-2010-404-7805, 10 January 2012 at [196] and [221].
9	Red Eagle Corporation Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [38].

Ltd.10     The defendants say that they never adopted the Southpac Trucks Ltd statements as their own.

[26]     It is common ground that there were discussions between Mr Chambers and Mr Herrick about the proposal for EZCCC Holdings Ltd to become an owner/driver. Information was supplied orally.  This is not a case where all the negotiations were conducted in writing and it is possible to establish what was said or not said and draw  inferences  from  what  was  said  by  referring  to  a  written  record.    It  is accordingly unsafe to make conclusive findings as to the effect of the parties’ negotiations and whether representations were made by considering only written documents, and without also having regard to what the parties said.  For example, if Mr Herrick led Mr Chambers to believe that he could rely on statements made by Southpac Trucks Ltd, that would go towards a finding against the defendants that they went beyond simply passing on information received.

[27]     Southpac Trucks Ltd’s assessment of the value of the truck is no doubt a statement of opinion.   Whether it is an expert statement of opinion is still to be established.  There is at present no evidence as to the defendants’ own knowledge of the value of the truck.   As the owner and operator of a fleet of trucks, Transport Dynamics Ltd is likely also to have some idea of the market value of its trucks.  If the defendants passed on a valuation of a truck made by a third party, intimating that it could be relied upon, when they knew that the truck did not have that value, then that would go beyond the “simple conduit” theory proposed by the defendants.  The point is that while a party negotiating a contract may maintain silence and is not required to alert the other party to potential risks, the conduct of the negotiations may require that the party speak to avoid misleading the other party.  The principle is
given in Actionable Non-Disclosure:11

The second of the three classes above mentioned comprises all those cases in which the party starts the negotiation with a clean bill of health, there being no duty of disclosure laid upon him by reason of the nature of the transaction contemplated, and either no representation at all having been made by him

10         Mainland Products Ltd v BIL (NZ) Holdings Ltd HC Auckland CIV-2002-404-1889, 8 June 2004 at [125]–[127].
11         George Spencer Bower, Alexander Kingcome Turner and Richard John Sutton Law Relating to Actionable Non-Disclosure and Other Breaches of Duty in Relations of Confidence, Influence and Advantage (2nd ed, Butterworths, London, 1990) at [12.05].

beforehand, or none which was false;  but where, during the progress of the negotiation, he says or does something, or something happens, which immediately casts upon him the duty of breaking the silence which till then he  has  legitimately  observed,  and  which  otherwise  he  need  never  have broken.  Excusable reticence has its limits, and these must not be exceeded. After laying down the general principle that silence is not actionable where there is no duty to disclose, Lord Eldon LC is careful to add: “but a very little is sufficient to affect the application of that principle.   If a word, a single word, is dropped which tends to mislead ..., the principle will not be allowed to operate.”  And to this “single word” Lord Campbell LC in a later case adds: “a nod, or a wink, or a shake of the head, or a smile”, as facts which make all the difference.  ...  In short, though the party need not say anything at all, if he does say anything, he must say everything, that is, everything to the topic in question:   by breaking silence he impliedly “undertakes” a duty which otherwise the law would not have prescribed.

[28]     The statements that the “truck is in excellent condition” and that “all vehicle servicing standards have been adhered to” might have led Mr Chambers to refrain from making further enquiry as to the service history and mechanical condition of the truck.  It appears that Transport Dynamics Ltd had a service history for the truck in this case.  If Transport Dynamics Ltd handed over to Mr Chambers documents as to the excellent condition of the truck, but knowing that the service history of the truck did not bear out the statements made by Southpac Trucks Ltd, and did not alert Mr Chambers to the true position, then there was arguably a misrepresentation on the part of the defendants.

[29]     Similarly, even if Mr Herrick was not aware of the condition of the truck at the time he handed over the Southpac Trucks Ltd documents to Mr Chambers but he became aware of it later, he would be under a duty to put the correct position to Mr Chambers.  That falls within the principle stated by Fry J in Davies v London and
Provincial Marine Insurance Company:12

Again, in ordinary contracts, the duty may arise from circumstances which occur during the negotiations.  Thus, for instance, if one of the negotiating parties has made a statement which is false in fact but which he believes to be true and which is material to the contract, and during the course of the negotiation  he  discovers  the  falsity  of  that  statement,  he  is  under  an obligation to correct his erroneous statement; although if he has said nothing he very likely might have been entitled to hold his tongue throughout.  So, again, a statement has been made which is true at the time, but which during the course of the negotiations becomes untrue, then the person who knows

12	Davies v London and Provincial Marine Insurance Company (1878) 8 Ch D 469 at 475, adopted in With v O’Flanagan [1936] Ch 575 (CA).

that it has become untrue is under an obligation to disclose to the other the change of circumstances.

[30]     The defendants’ conduit argument requires the court at this stage to take a particular view of the circumstances in which the Southpac Trucks Ltd documents were  handed  over  to  Mr  Chambers,  when  the  court  does  not  yet  have  all  the evidence.  Much will turn on the defendants’ own knowledge of the truck and what Mr Chambers was told.

[31]     At this stage it is premature to say that the claims based on Southpac Trucks Ltd’s documents are bound to fail, whether the claims are framed under s 6 of the Contractual Remedies Act or for breach of the Fair Trading Act.

Vehicle revenue analysis

[32]     The defendants say that the vehicle revenue analysis is an accurate record of the freight earned by a truck carrying out a container delivery run in the previous financial year.  Mr Herrick says that he alerted Mr Chambers to the fact that the costs charged against the vehicle were not comprehensive.  Because the vehicle revenue analysis was an accurate record of past earnings of another truck, the plaintiff’s claim that this was a forecast of future earnings is misconceived.

[33]     If the matter were to be assessed only according to the document alone, there would be something in the defendants’ argument.   However, as with the Southpac Trucks Ltd documents, it is unsafe to decide a misrepresentation claim solely on the basis of a written document, when much will turn on what was said in discussions between the parties.

[34]     Mr Chambers says that he was given the document to rely on as an indicator of future earnings.  Mr Herrick knew that he used it to prepare cashflow forecasts.

[35]     While this aspect of the claim by EZCCC Holdings Ltd does look weak, under the approach of the Court of Appeal in Westpac v Kembla, weakness alone is not enough for the court to give summary judgment against a plaintiff. The court has to be satisfied that the plaintiff cannot succeed in any of its causes of action against

the particular defendant.  In a summary judgment application, it is inappropriate for the court to make assessments as to what the parties may or may not have said in discussions. The claim in respect of the vehicle revenue analysis should also go to trial.

[36]     Even if I had held that the claim for the vehicle revenue analysis was not arguable, I could not make the orders sought by the defendants.  A striking out order could  not  be  made,  because  the  matter  turns  on  evidence,  not  on  pleadings. Summary judgment could not be given, because the vehicle revenue analysis is only one part of the plaintiff’s claim.  Summary judgment can be given only if the whole
claim is doomed to fail.13

[37]     The  defendants’ striking  out  and  summary  judgment  applications  do  not succeed.  However, the argument of these applications has highlighted weaknesses in the plaintiff’s pleading.   It is not for me to direct the plaintiff how to improve its case, but I give it the opportunity to do so by allowing time for it to file and serve an amended pleading.

Application for security for costs

[38]     EZCCC Holdings Ltd is in a poor financial position.   It has disclosed its financial records.  They give good reason to believe that if it is unsuccessful, it will not have the funds to meet any order for costs made against it. For the year ended 31
March 2011 it had a trading loss of $8,049 and shareholders’ equity of negative

$8,488.   For the year ended 31 March 2012 it had a trading loss of $6,932 and shareholders’ equity of negative $15,732. The threshold under r 5.45(1)(b) has been established.

[39]     Without traversing all the arguments as to the relative merits on each side, I record that there are significant difficulties in the case for EZCCC Holdings Ltd. I assume  that  EZCCC  Holdings  Ltd  may succeed  under  s  4  of  the  Contractual Remedies Act that it should not be confined by ”no representation”, “own judgment”
and “entire agreement” clauses in the owner/operator licence contract.  Even so, it

13	High Court Rules, r 12.2(2).

faces significant difficulties on causation issues and with measure of damages.  It is possible that Mr Chambers’ difficulties in operating profitably were not attributable to the condition of the vehicle, but to other financial factors.  Mr Herrick also attacks him for not having the vehicle running for 24 hours a day.  Transport Dynamics Ltd also seems to have sound arguments that it validly terminated the contract, and that it is the valid termination of the contract which is the cause of the losses.  Similarly, even if the termination were invalid, the true measure of damages may be much less, for example, if it were assessed by the contractual period of notice rather than by the term of the licence.

[40]     EZCCC Holdings Ltd maintained that it should not be required to provide security for costs because its poor financial position resulted from the actions of the defendants.

[41]     It is relevant that EZCCC Holdings Ltd was under-capitalised from the outset and accordingly it was likely that it was always going to have trouble breaking even. It was already in a weakened financial position before it dealt with Transport Dynamics Ltd.

[42]     The preliminary assessment is that its claims are weak, although not hopeless. In this situation there is a potential injustice to the defendants if they have to go to trial but will not be able to recover costs from the plaintiff afterwards.  This case is an appropriate one for requiring the plaintiff to provide security for costs.

[43]     The defendants provided a calculation of costs on a category 2B basis.  The estimate is approximately $51,000.  There was no allowance for the cost of expert witnesses.  Mr Hunter suggested perhaps $15,000 on that head as well.  It is standard to apply some discounting from the calculation of total likely costs.

[44]     While I would ordinarily make an order for security for costs, there is one step  that  would  persuade  me  not  to  order  security.    If  Mr  Chambers  were  to undertake personally to  be liable for any order for costs  made  against  EZCCC Holdings Ltd in this proceeding, I would not require security.  Mr Chambers is not himself in a strong financial position.  However, by assuming personal liability for

the litigation undertaken by his company, it will be brought home to him that he must approach   the   litigation   realistically.      It   is   the   sobering   effect   of   personal responsibility for costs that should allow him to assess realistically whether to continue with the proceeding.14

[45]     I cannot order Mr Chambers to give such an undertaking as to costs.  After all, he is not a party to the proceeding.  But if he were to give such an undertaking, I would not order security.   Mr Craighead indicated that he would have to take instructions on this aspect.

[46]     Accordingly, I will grant time to see whether Mr Chambers will give an undertaking to pay the costs himself.  If he does not do so then, within 5 working days of this decision, the defendants may ask for a telephone conference for me to fix security for costs.

Outcome

[47]     I give these directions:

(a)	Leave is granted to the defendant to apply for summary judgment.

(b)       The strike-out application and the summary judgment application are dismissed.

(c)       There is to be a telephone conference at a time to be fixed by the Registrar within one week.   That conference will review the timetabling directions given below and will see whether the question of security for costs has been resolved.  If it has not been, I will fix the security for costs.

(d)       EZCCC Holdings Ltd may file and serve an amended statement of claim by the same date as the conference.

14	See Helicopter Finance Ltd v Tokoeka Properties Ltd [2012] NZHC 686 at [45].

(e)	The defendants are to file and serve an amended statement of defence to the new statement of claim within a further week.

(f)	The plaintiff is to serve its evidence by 3 March 2013.

(g)	The defendants are to serve their statements of evidence by 27 March

2013.

(h)	The parties are to agree on the index for the bundle of documents by 2

April 2013.

(i)	The plaintiffs are to file and serve the bundle of documents by 8 April

2013.

(j)	The plaintiff is to file and serve its opening by 8 April 2013. (k)	The case is confirmed to start on 15 April 2013 for 5 days.
[48]	I make no order as to costs, as each side has had some success.

............................................
R M Bell
Associate Judge