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Clark v Central Lakes Homes Ltd

Clark v Central Lakes Homes Ltd

Case [2016] NZHC 2164 13 September 2016

Contractual Obligations

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2016-425-25 [2016] NZHC 2164

BETWEEN
PETER JOHN CLARK

Appellant

AND

CENTRAL LAKES HOMES LIMITED Respondent

Hearing:
13 September 2016

(On the papers)

Counsel:

T M Braun for Appellant
H C Matthews for Respondent

Judgment:

13 September 2016

JUDGMENT OF MANDER J

[1] The appellant, Mr Peter Clark, appealed the entry of summary judgment against him for a sum of money the Building Disputes Tribunal (the Tribunal) ruled he owed to the respondent, Central Lakes Homes Limited (CLH). I dismissed the appeal on 25 July 2016.1 CLH sought recall of my judgment on the basis the issue of whether interest was payable by Mr Clark from the date of the District Court judgment to the date of my judgment had not been determined. CLH seeks interest for that period at the contractual interest rate contained in the building contract.

Background

[2] CLH raised the interest issue in its written submissions and at the conclusion of the hearing of the appeal requested to be heard on the question of interest. Both parties agreed to reserve further argument until the result of the appeal was known.

[3] When I issued my judgment, I did not address whether interest was payable between the date of the District Court judgment and the date of the High Court

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

CLARK v CENTRAL LAKES HOMES LIMITED [2016] NZHC 2164 [13 September 2016]

judgment and beyond. CLH has filed a memorandum addressing the issue of both recall and the payment of contractual interest for the period between the District Court and High Court judgments. CLH’s memorandum was referred to Mr Clark who advised that he did not intend to reply to CLH’s application.

[4] Mr Clark paid the funds the subject of the District Court judgment in to the District Court, pursuant to s 84 of the District Courts Act 1947, to place a stay of proceeding. I understand that since the delivering of my judgment those monies have now been disbursed to CLH.

Should the judgment be recalled?

[5] CLH submitted the judgment should be recalled under r 11.9 of the High

Court Rules. Rule 11.9 provides:

11.9 Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[6] In Horowhenua County v Nash (No 2) three categories of cases were identified where a judgment could be recalled:2

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a…

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 Clark v Central Lakes Homes Ltd

Details

AGLC: Clark v Central Lakes Homes Ltd [2016] NZHC 2164
Case: [2016] NZHC 2164
Decision Date: 13 September 2016

CaseChat Overview and Summary

The case of Clark v Central Lakes Homes Limited involves a dispute between Peter John Clark (the appellant) and Central Lakes Homes Limited (the respondent). The central issue before the High Court was the appeal of a summary judgment entered against Mr Clark by the Building Disputes Tribunal (the Tribunal). The Tribunal had ruled that Mr Clark owed a sum of money to the respondent. The appeal was dismissed on 25 July 2016. However, the respondent subsequently sought recall of the judgment on the basis that the issue of interest payable by Mr Clark from the date of the District Court judgment to the date of the High Court judgment had not been determined. The respondent argued that they were entitled to interest for that period at the contractual interest rate stipulated in the building contract.

The legal issues the court was required to decide included whether the judgment should be recalled under r 11.9 of the High Court Rules and whether interest should be granted on appeal. The respondent contended that the judgment should be recalled as it fell under the third category of cases where justice requires that the judgment be recalled, citing precedents such as Horowhenua County v Nash (No 2) and Rainbow Corporation Ltd v Ryde Holdings Ltd. Additionally, the respondent sought interest at the contractual interest rate of 29.25 per cent, as provided by clause 55 of the contract. The court needed to determine whether clause 55 was a non-merger clause and whether the procedural course followed by the respondent allowed the court to address the issue of interest on the appeal.

The court's reasoning was that while the issue of interest was raised by the respondent, the judgment was delivered without addressing the issue. The court noted that the matter could fall under the third category for recall, but it was also necessary to consider the merits of the interest issue. However, the court found that the respondent had not filed a cross-appeal, and therefore, the issue of ongoing interest from the date of the entry of judgment was not appropriately before the court. The court concluded that it was not necessary to recall the judgment of 25 July 2016, and thus, the application for recall was dismissed.

Orders