Clark v Central Lakes Homes Limited - [2016] NZHC 3138

IN THE HIGH COURT OF NEW ZEALAND

INVERCARGILL REGISTRY

CIV-2016-425-25

[2016] NZHC 3138

BETWEEN
PETER JOHN CLARK

Appellant

AND

CENTRAL LAKES HOMES LIMITED

Respondent

Hearing: 20 December 2016 On the papers

Counsel:

T M Braun for Appellant

H C Matthews for Respondent

Judgment:

20 December 2016

JUDGMENT OF MANDER J

Introduction

[1] The appellant, Peter Clark, appealed the entry of summary judgment against him for a sum of money the Building Disputes Tribunal (the Tribunal) determined he owed to the respondent company, Central Lakes Homes Ltd (CLH). On 25 July 2016 I dismissed the appeal.1 The parties have been unable to agree on costs and CLH now comes to the Court for resolution.

Background

[2] CLH entered into a contract with Mr Clark to build a residential dwelling on his Queenstown property. Relations between the parties broke down and the contract was brought to an end. The circumstances leading to the termination of the contract were in dispute. The dispute was referred to the Tribunal for adjudication. The

1 Clark v Central Lakes Homes Ltd [2016] NZHC 1694.

CLARK v CENTRAL LAKES HOMES LTD [2016] NZHC 3138 [20 December 2016]

adjudicator determined that Mr Clark was liable for claimed losses, together with interest as well as a half share of the adjudicator’s fee.

[3] CLH sought to enforce the adjudicator’s determination in the District Court by applying for summary judgment which Mr Clark resisted. Judge Callaghan granted the application for summary judgment.2 Mr Clark appealed.

[4] On 25 July 2016 I issued my judgment dismissing the appeal.3 The issue as to costs remained to be agreed between the parties with memoranda to be exchanged if they could not agree. They could not do so.

Actual and reasonable

[5] CLH have sought an award of “actual and reasonable” costs under s 59(2)(a)(ii) of the Construction Contracts Act 2002 (the Act). That section provides:

59 Consequences of not complying with adjudicator’s determination under section 48(1)(a)

(1)The consequences specified in subsection (2) apply if a party to the adjudication fails, before the close of the relevant date, to pay the whole or part of the amount determined by an adjudicator.

(2)The consequences are that the party who is owed the amount (party
A) may do all or any of the following:

(a)recover from the party who is liable to make the payment (party B), as a debt due to party A, in any court,—

(i)the unpaid portion of the amount; and

(ii)the actual and reasonable costs of recovery awarded against party B by that court:

…

[6] Arguably the reference in s 59(2)(a)(ii) to “that court” is to the Court from which recovery is sought for the unpaid portion of the amount determined by an adjudicator. However, before me was an appeal from the entry of summary judgment

2 Central Lakes Homes Ltd v Clark [2016] NZDC 396.
3 Clark v Central Lakes Homes Ltd, above n 1.

by the District Court. Rule 20.19(1)(c) of the High Court…

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: [2016] NZHC 3138
Decision Date: 20 December 2016

CaseChat Overview and Summary

The case of Clark v Central Lakes Homes Limited involves an appeal against the entry of summary judgment for a sum of money determined by the Building Disputes Tribunal (the Tribunal). Peter John Clark (the appellant) appealed against the summary judgment entered against him by the District Court in favour of Central Lakes Homes Ltd (the respondent). The Tribunal had determined that Mr. Clark was liable for the claimed losses, together with interest, as well as a half share of the adjudicator’s fee. The legal issue before the Court was whether Central Lakes Homes Ltd was entitled to "actual and reasonable" costs under s 59(2)(a)(ii) of the Construction Contracts Act 2002. The Court held that the prevailing reasons behind actual costs being recoverable under s 59(2)(a)(ii) applied equally on appeal and that Central Lakes Homes Ltd was therefore entitled to actual and reasonable costs. The Court further held that the fee component of the invoices sought was $13,163.00 exclusive of GST and that this was reasonable and recoverable in full. In terms of disbursements, the Court allowed the $260 in administration fees and the sealing fee of $50 in full. The Court also allowed GST on those figures.

The Court awarded costs totalling $15,486.45, comprising $13,163.00 in costs, $310 in disbursements, and $2,013.45 in GST. The Court ordered Mr. Clark to pay these costs to Central Lakes Homes Ltd.

Orders