Burmester v Norsand Ltd - [2020] NZHC 1945

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-111

[2020] NZHC 1945

BETWEEN
PETER BURMESTER

Appellant

AND

NORSAND LIMITED

Respondent

Hearing: 16 July 2020

Appearances:

Appellant in person

M R Ridgley for Respondent

Judgment:

5 August 2020

JUDGMENT OF LANG J

This judgment was delivered by me on 5 August 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Thomson Wilson, Whangarei Copy to: Appellant

BURMESTER v NORSAND LTD [2020] NZHC 1945 [5 August 2020]

[1] This appeal relates to a dispute about the value of maintenance work carried out by the respondent, Norsand Limited (Norsand), on the mast of a Baltic 55 DP yacht owned by the appellant, Mr Peter Burmester.

[2] On 5 December 2019, Judge G M Harrison entered judgment in favour of Norsand against Mr Burmester in the sum of $10,111.07.1 Mr Burmester appeals against that decision.

Background

[3] Mr Burmester’s yacht, the “Star Appeal”, is also Mr Burmester’s home. He moors it in the Town Basin marina in Whangārei.

[4] On 28 April 2017, Mr Burmester spoke to Mr Gerry Jacobs, Norsand’s rigging manager, about undertaking an overhaul of the Star Appeal’s mast. On 12 June 2017 Mr Jacobs sent Mr Burmester an email in which he estimated the cost involved in de- stepping the mast and carrying out required maintenance work. The estimate was in the following terms:

Estimate for ‘Star Appeal’ Re-Rig
Mast Out
Partial mast prep (owner to prep as advised), un-step, mast prep and re-step
$ 1,200.00

Mast Transport
Hireage of truck transporting mast to and from Norsand (mast out and for mast in) on and off loading mast from truck to mast yard at Norsand.
$ 998.00

Re-Rig
Removing rigging, making and re-fitting new rod rigging for all except baby stay.
This provided fittings are not seized (difficult to dismantle)
$14,416.84

- Price of re-heading rods only $ 840.00
Note: This estimate is based on standard fittings, actual lengths and fittings may vary.
Backstay insulators included in price, rigging screws excluded.

1 Norsand Ltd v Burmester [2019] NZDC 24286.

Terms:
This is an estimation of labour and materials and should not be considered as a Quote.
40% deposit before commencement and fortnightly progress payments.
All prices are excluding GST (if any)
Hope this helps, if needed I can give you a further estimate for electrical wiring (not included).

[5] Mr Burmester accepted the estimate. On 14 June 2017 he sailed the yacht to Port Nikau, which had a wharf with water of sufficient depth to moor the yacht. Until that point Mr Jacobs had intended removing the mast with a forklift. When he saw the mast, however, he decided it would be better to use a crane to remove it rather than a forklift. He says Mr Burmester agreed to meet the extra cost of using the crane because this method of removing the mast was less likely to cause damage to 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.

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Details

Case: [2020] NZHC 1945
Decision Date: 5 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Peter Burmester appealed against a judgment entered in favour of Norsand Limited, which found Burmester liable for the cost of maintenance work carried out on his yacht's mast. Burmester argued that Norsand had overcharged him for the work, and he sought to recover his losses through a counterclaim. The legal issues in the case were whether Norsand had provided sufficient detail in its invoices, whether Burmester had agreed to the additional cost of using a crane to remove the mast, and whether Norsand had overcharged him for the work. The court found that Norsand's invoices were sufficiently detailed, and Burmester had failed to challenge Norsand's evidence during cross-examination, leading the court to accept Norsand's evidence that Burmester had agreed to the use of the crane. The court also found that Burmester's counterclaim could not succeed because he had failed to provide evidence of his alleged losses. The appeal was dismissed, and Norsand was awarded costs. The interim order staying execution of the judgment against Burmester's yacht was to remain in force until midnight on 26 August 2020. Thereafter, Norsand was free to levy execution against the yacht.

Orders