Brightwater Engineering Ltd v Platinum Electrical Ltd

[2025] NZHC 3120

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000979

[2025] NZHC 3120

UNDER

the Construction Contracts Act 2002

IN THE MATTER OF

an expired payment claim pursuant to s 23 of the Construction Contracts Act 2002

BETWEEN

BRIGHTWATER ENGINEERING LIMITED

Appellant

AND

PLATINUM ELECTRICAL LIMITED

Respondent

Hearing:

9 October 2025

Counsel:

D Viatos for Appellant

DJK Mitchell for Respondent

Judgment:

21 October 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 21 October 2025 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors/Counsel: Gibson Sheat, Wellington. DJK Mitchell, Auckland.

BRIGHTWATER ENGINEERING LTD v PLATINUM ELECTRICAL LTD [2025] NZHC 3120 [21 October 2025]

The appeal

[1]    The District Court dismissed an application for summary judgment in relation to the Construction Contracts Act 2002.1 The respondent has since paid the entirety of the underlying invoice, so the only question is whether the appellant is entitled to its “actual and reasonable costs of recovery” under the Act.2 That question raises issues identical to those in the District Court, albeit, as observed, through the rubric of costs under the Act.

Background

[2]    In April 2024, Platinum Electrical Ltd3 engaged Brightwater Engineering Ltd4 to install an electrical transformer in Whenuapai. The agreed price was $12,800,  plus GST.

[3]    Work began in June 2024. On 30 June 2024, Brightwater issued an invoice for the agreed price (invoice 1).

[4]On 23 July 2024, Platinum responded by email (the email):

Hi Brightwater,

Unfortunately, this project didn’t go well and we have a few issues with additional costs incurred by Brightwater that need to be resolved.

In agreement with Brightwater, the HV changeover was take place on the 4th of June and to be completed at COB on the 4th of June. The physical work was completed on the 4th of June however Bright waters electrical inspector failed to attend the site to inspect the completed works. We gave ample opportunity for Brightwater to engage the electrical inspector unfortunately Bright water failed to do so. On the 6th of June Platinum Electrical engaged its electrical inspector to carry out the inspection work.

Platinum has incurred additional significant costs in generator hire and inspection costs which will need to be deducted off the Bright water invoice.

Before we resolve the bright water invoice Platinum Electrical requires the testing and commissioning results.

1      Act.

2      The appellant also seeks interest on the (now repaid) invoice amount.

3      Platinum.

4      Brightwater.

[5]    Brightwater simply ignored the email. On 28 August 2024, it again invoiced Platinum for the agreed amount (invoice 2).

[6]On 27 September 2024, Brightwater demanded payment.

[7]    On 9 October 2024, Platinum sent a second email: (a) reiterating Brightwater had not completed the agreed works and Platinum had suffered loss; and (b) saying it would pay 50 percent  of  the  underlying  sum  until  all  matters  were  resolved.  On 14 November 2024, Platinum paid 50 percent.

[8]    Brightwater then applied to the District Court  for  summary  judgment.  Judge D J Clark dismissed that application.5 Brightwater now appeals.

[9]    Platinum has since paid the balance of the invoice. However, Brightwater seeks “actual and reasonable costs of recovery” under s 23(2)(a)(ii) of  the Act. These exceed $30,000. It follows Brightwater seeks to recover, in costs, more than twice the amount of the original dispute.

The decision under appeal

[10]   The Judge held, contrary to Brightwater’s submission, that invoice 1 was a payment claim under the Act taking the “pragmatic, commonsense and contextual approach”6 encouraged by the Court of Appeal. The Judge also held that payment claim could not be reset by Brightwater issuing invoice 2.

[11]   Unlike the authorities to which the Judge was referred, the case involved a lump sum payment for a one-off project. As the Act requires every payment claim to be met with a response, Parliament could not have intended the habitual re-issuing of a payment claim “hoping to catch out” the debtor.7

5      Brightwater Engineering Ltd v Platinum Electrical Ltd [2025] NZDC 5254 [judgment on appeal].

6      C J Parker Construction Ltd (in liq) v Ketan [2017] NZCA 3 at [25].

7 Judgment on appeal, above n 5, at [43].

[12]   Finally, the Judge held while the email recorded no scheduled amount, it was arguably a valid payment schedule because “the scheduled amount stood at zero … and the reasons for doing so were because of the alleged delays and non- performance”.8

Principle

[13]   An appeal in this context is a rehearing, but the appellant must demonstrate error or persuade this Court to a different conclusion from that below.9 Summary judgment is available against a defendant only if the plaintiff satisfies the Court the defendant has no defence to the claim.10 The Court must be left without any real doubt of an issue to be tried.11

The arguments in brief

[14]The arguments require an understanding of both invoices.

[15]Invoice 1 reads:

Description	Qty	Rate	Line Total
Platinum Electrical Limited – Whenuapai Simulator Transformer termination Whenuapai Simulator Transformer termination	1.00	12,800.00	12,800.00
Invoice Amount: Plus GST		12,800.00 1,920.00

[16]Invoice 1 also contains a due date of 20 July 2024.

8 At [46].

9      Meroiti v Southern Receivables Ltd [2017] NZHC 2637 at [18]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

10     District Court Rules 2014, r 12.2.

11     Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

[17]Invoice 2 reads:

CLAIM TO DATE
Description	Contract Price	% Complete	Current Month	$ Value
Whenuapai Simulator Transformer Termination
As per quote dated 16 April 2024
Switching Instructions, Isolation, Switching and Lockout of existing Transformer	100.0%
Disconnect of existing HV Termination, ready to be pulled back to new location by others	100.0%
Supply and Installation of HV termination on existing cable	100.0%
Supply and Installation of Standard Earth grid for Transformer	100.0%
Minor oversight of proposed cable pulling	100.0%
Testing, Certification, Inspection, Commissioning	100.0%
Switching Instructions, Switching and livening of Transformer, new transformer	100.0%
Total	12,800.00	100.0%	12,800.00	12,800.00
TOTAL BASE CONTRACT	$12,800.00	$12,800.00	$12,800.00

Total Base Contract Complete to Date	$12,800.00
Total Variations Complete to Date	–
Net Claim to Date	$12,800.00
Less Previous Net Claimed Amount	–
CLAIMED AMOUNT (excluding GST)	$12,800.00

[18]   Platinum contends it is arguable invoice 1 is a payment claim under the Act, and the email, likewise, a valid payment schedule. Platinum says invoice 2 cannot comprise a payment claim under the Act for the reasons identified by the Judge.

[19]   Brightwater disavows invoice 1 — its own invoice — as a valid payment claim, and hence says the email cannot constitute a payment schedule under the Act. Brightwater says invoice 2 comprises a payment claim under the Act, to which there is no payment schedule. So, it contends Platinum is liable for its costs under the Act.

Analysis

[20]   Section 20 of the Act identifies the requirements for a  payment  claim.  These include identification of the work; the period over which the payment relates; a statement  of  the  due  date;  and  how  the  claimed  amount  was  calculated.12  The Court of Appeal has said “technical quibbles” will not defeat the validity of a payment claim.13

[21]   Unlike the Judge, I do not consider it arguable that invoice 1 is a payment claim. Invoice 1 does not identify when the work was done or contain the correct due date.14 It also fails to indicate how the claimed amount was calculated. These defects are more than technical quibbles. That being so, there is obvious difficulty with the email comprising a payment schedule under the Act because a payment schedule responds to a payment claim.

[22]   This leaves invoice 2. While I am inclined to accept Brightwater’s contention that there is no reason in principle why invoice 2 could not constitute a payment claim, it is distinctly arguable invoice 2 does not indicate how Brightwater calculated the claimed amount, contrary to s 20(2)(e) of the Act. To elaborate, while invoice 2 asserts each of the tasks has been completed “100.0%”, the invoice does not ascribe a monetary value for any of the tasks, in circumstances in which the email was seeking to identify the value of the uncompleted task or tasks to resolve the dispute. Relatedly, it is arguable the omission is not merely a technical quibble. Consequently, it is arguable invoice 2 is not a valid payment claim.

[23]   As there is a serious question to be tried in relation to invoice 2, the appeal must fail. So too, therefore, Brightwater’s entitlement to costs under the Act.

12     Section 20(2)(c)–(e). Compliance with the other s 20 requirements is not in dispute.

13     George Developments Ltd v Canam Construction Ltd [2006] 1 NZLR 177 (CA) at [42]–[43].

14     The parties agree the due date is incorrect.

Result

[24]The appeal is dismissed.

Costs

[25]   The appeal resulted in Platinum paying the outstanding balance of the invoice, so there is an argument costs should lie where they fall despite Platinum’s appellate success. But Platinum paid the balance before the hearing and was put to the expense of a hearing. I, therefore, award Platinum 2B scale costs as the successful party.

……………………………..

Downs J