Beirne v Kidd - [2015] NZHC 2151

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-124 [2015] NZHC 2151

BETWEEN
GRAHAM HENRY BEIRNE

Appellant

AND

CHARLES EDWARD FRANCIS KIDD Respondent

Hearing: 25 August 2015

Appearances:

W J Hamilton for Appellant
R T Chapman for Respondent

Judgment:

4 September 2015

JUDGMENT OF MANDER J

[1] The appellant, Mr Graham Beirne, imported a recreational camper vehicle (RV) from the United States. He entered into a contract with the respondent, Mr Charles Kidd, to carry out modification work to reduce the width of the RV in order for it to comply with New Zealand standards.

[2] Mr Beirne and Mr Kidd subsequently came into dispute regarding the standard of the work carried out and claims made by Mr Beirne of damage to the RV and alleged defects in workmanship, which Mr Beirne was required to remedy himself.

[3] Mr Kidd sued Mr Beirne to recover the sum of $28,262.06 (including GST), representing the unpaid portion of the amount he had invoiced Mr Beirne for the work done. Mr Beirne counterclaimed for the sum of $17,867.48 (including GST), for costs he claimed he had incurred to remedy Mr Kidd’s defective work and
damage.

BEIRNE v KIDD [2015] NZHC 2151 [4 September 2015]

[4] The District Court allowed Mr Kidd’s claim in full.1 Mr Beirne was awarded

$3,128.62 on his counterclaim.

[5] Mr Beirne has appealed the District Court’s award in favour of Mr Kidd, and

the refusal of the balance of his counterclaim.

Facts

[6] There is no material dispute regarding the wider background facts. After Mr Beirne imported the RV, he met Mr Kidd who advised that he had experience in modifying RV’s to meet New Zealand regulations. The process involved cutting the vehicle in half, reducing the width of the vehicle by some 60 mm, and then reassembling the vehicle.

[7] The parties first met at Rolleston, where the price discussed between them ranged from $18,000 to $30,000, but up to $35,000. A second meeting took place at Mr Kidd’s farm in Winton, in April 2010, when the RV was taken to Mr Kidd for him to inspect. The price discussed by the parties at that meeting was between
$18,000 and $35,000. Mr Kidd accepted that he gave an upper price range of

$35,000 “tops”, and acknowledged he used that phrase in the conversation. There is

no dispute that GST was not discussed at either meeting.

[8] At the meeting at Mr Kidd’s farm, agreement was reached for Mr Kidd to carry out the work, and Mr Beirne left the RV with him for the modification to be carried out. A matter in dispute between the parties is whether or not the range of price discussed was inclusive or exclusive of the cost of a new windscreen. Similarly, there is dispute as to whether the work to be carried out included painting of the parts of the RV that were to be affected by the work.

[9] When the modifications were completed, Mr Beirne’s nephew picked up the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beirne v Kidd

Details

AGLC: Beirne v Kidd [2015] NZHC 2151
Case: [2015] NZHC 2151
Decision Date: 4 September 2015

CaseChat Overview and Summary

In Beirne v Kidd, Mr Beirne, the appellant, appealed against the decision of the District Court, which had allowed Mr Kidd's claim in full and dismissed Mr Beirne's counterclaim. Mr Beirne had engaged Mr Kidd to carry out modification work to reduce the width of his RV in order for it to comply with New Zealand standards. Mr Beirne subsequently alleged that the work carried out by Mr Kidd was defective, and that he had been required to remedy the damage himself. Mr Kidd sued Mr Beirne to recover the sum of $28,262.06 (including GST), representing the unpaid portion of the amount he had invoiced Mr Beirne for the work done. Mr Beirne counterclaimed for the sum of $17,867.48 (including GST), for costs he claimed he had incurred to remedy Mr Kidd’s defective work and damage. The issues on appeal related to the terms of the agreement between the parties, in particular whether an agreed maximum price for the work had been set, whether the price was inclusive or exclusive of GST, whether the work to be carried out included painting of the parts of the RV that were to be affected by the work, whether damage had been caused to the RV’s headlining, and whether Mr Kidd was liable for the cost of replacing the urethane around the windscreen. The Court concluded that there was an agreed maximum price for the work of $35,000, which included the cost of the windscreen. The price was GST inclusive. The painting was not included in the agreement. Mr Kidd was liable to remedy the damage to the headlining, by attempting to clean the headlining first, or by replacement. Mr Kidd was not liable for the cost of replacing the urethane seal around the windscreen. The District Court decision in favour of Mr Kidd was set aside, and Mr Kidd was to be awarded $22,167.48 (including GST). Mr Beirne was awarded an additional $4,571.25 (including GST) for the replacement windscreen. Mr Kidd was to be afforded the opportunity to clean the headlining, as outlined in the judgment. If this remedy proved unsuccessful, Mr Beirne was to be awarded $4,600 (including GST). Mr Beirne was awarded costs on this appeal.

Orders