Buchanan Construction Limited v Watson - [2019] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1457

[2019] NZHC 624

UNDER Rule 20.4 of the High Court Rules 2016

BETWEEN

BUCHANAN CONSTRUCTION LIMITED

Appellant

AND

CHRISTINE WATSON

Respondent

Hearing: 27 March 2019

Appearances:

C Orton for the Appellant Respondent on own behalf

Judgment:

28 March 2019

JUDGMENT OF GORDON J

This judgment was delivered by me
on 28 March 2019 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Corban Revell, Auckland Copy to: The Respondent

BUCHANAN CONSTRUCTION LTD v WATSON [2019] NZHC 624 [28 March 2019]

[1] This is an application by the appellant, Buchanan Construction Ltd (BCL) under r 20.4(3) of the High Court Rules 2016 for special leave extending the time for bringing an appeal.

[2]The application is opposed by the respondent, Christine Watson.

Background

[3] BCL and Ms Watson entered into a construction contract in September 2015 for building work at Ms Watson’s home. A number of invoices were issued over the period of the contract. Five of the invoices were not paid or only paid in part.

[4] BCL issued a payment claim for the sum of $16,438.47. No payment schedule was provided in response by Ms Wilson. In the District Court, BCL sought judgment for that amount together with interest and costs.

[5] Ms Watson’s position was that the payment claim did not comply with the requirements of the Construction Contracts Act 2002 (the Act) and further that the payment claim was not sufficiently served for the purposes of s 80 of the Act.

[6] The proceeding came before Judge Sinclair in the District Court at Auckland on 22 February 2018 and a reserved decision was given on 13 March 2018 dismissing BCL’s claim.

[7]The appeal was required to be filed by 12 April 2018.1

[8] The notice of appeal, dated 6 July 2018, and the application for special leave seeking an extension of time, dated 10 July 2019, were both filed on 11 July 2018.

1 Rule 20.4(2)(b) of the High Court Rules 2016 requires the appeal to be brought within 20 working days after the decision appealed against is given, if the statute conferring the right of appeal does not stipulate a time limit. This provision applies as s 124 of the District Court Act 2016 does not specify a time period within which the appeal must be brought.

The law

[9] An extension of time is within the discretion of the Court. The considerations a Court will take into account are well-established:2

[10] In My Noodle v Queenstown-Lakes District Council the Court of Appeal stated as follows:3

[19] A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay: New Plymouth District Council v Waitara Leaseholders Association Incorporate [2007]…

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 Buchanan Construction Limited v Watson

Details

AGLC: Buchanan Construction Limited v Watson [2019] NZHC 624
Case: [2019] NZHC 624
Decision Date: 28 March 2019

CaseChat Overview and Summary

Buchanan Construction Limited (BCL) sought an extension of time to appeal against the District Court's decision, which dismissed BCL's claim for outstanding invoices from a construction contract. Christine Watson opposed the application. BCL and Watson had entered into a construction contract in 2015, and several invoices remained unpaid. BCL filed a payment claim for $16,438.47, which Watson contested on the basis that it did not comply with the Construction Contracts Act 2002. The District Court dismissed BCL's claim on 13 March 2018, and BCL was required to file its notice of appeal by 12 April 2018. BCL filed its notice of appeal and application for special leave on 11 July 2018, citing delays in receiving the District Court's decision and an error in calculating the filing fee.

The court considered the delay in filing the appeal, the reasons for the delay, the conduct of the parties, and the extent of any prejudice caused by the delay. The court found that BCL's solicitor did not receive the District Court's decision until 23 April 2018, and BCL's director was also unaware of the decision until that date. The court accepted the genuine mistake in calculating the filing fee, but noted an unexplained delay in filing the application after the fee was paid. The court found no evidence of disqualifying conduct by BCL and found that any prejudice to Watson would have arisen regardless of the delay. The court granted the application for special leave, allowing BCL to extend the time for filing the appeal.

Orders