Clark v Central Lakes Homes Ltd

Link copied
Case Copied 28 min read

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-425-25 [2016] NZHC 1694

BETWEEN

PETER JOHN CLARK

Appellant

AND

CENTRAL LAKES HOMES LIMITED Respondent

Hearing: 6 July 2016

Appearances:

H C Matthews for Appellant
T M Braun and M Brady for Respondent

Judgment:

25 July 2016

JUDGMENT OF MANDER J

[1]      The  appellant,  Mr  Peter  Clark,  appeals  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  Limited (CLH).

Background

[2]      Mr Clark and CLH entered into a contract to build a residential dwelling on Mr Clark’s property situated in Queenstown.   Relations between the parties irreconcilably broke down and the construction contract came to an end.   The circumstances leading to the termination of the contract are in dispute.   Mr Clark maintains the contract ended by way of mutual termination which included CLH’s agreement to leave the building site and allow an alternative contractor to continue construction work.  CLH’s position is that Mr Clark instructed CLH to cease work, refused access to the property, and unilaterally engaged an alternative builder.

[3]      CLH issued a notice under a clause of the contract  advising that in the absence of Mr Clark vacating the building site CLH was permitted to terminate the

CLARK v CENTRAL LAKES HOMES LIMITED [2016] NZHC 1694 [25 July 2016]

contract.  In such an event, CLH maintained it was entitled to recover certain costs, expenses and damages.  The relevant clauses of the construction contract upon which it relied read as follows:

48The owner will be in breach of Contract if, without the prior written consent   of   the   Registered   Master   Builder,   the   Owner   takes possession  of  the  building  site  and  the Works  prior  to  Practical Completion or prior to making payment in full of any amount due and owing to the Registered Master Builder.   In such case, the Registered  Master  Builder  may,  by  notice  in  writing,  notify  the Owner that it has two working days to vacate possession of the building site and Works.

49If the Owner does not vacate the building site and Works within two working days, the  Registered Master Builder  shall be entitled to terminate the Contract immediately.   Upon termination under this clause:

(a)       the owner must pay the Registered Master Builder all sums due and owing under the Contract, plus any damages, costs, expenses or loss of profit of the Registered Master Builder arising out of the termination of the Contract; and

(b)       the   Registered   Master   Builder   shall   have   no   further obligations to the Owner under the Contract.

Adjudication by the Building Disputes Tribunal

[4]      The dispute was referred to the Tribunal for adjudication.   CLH sought a determination that Mr Clarke was liable to pay the following sums:

(a)      Work completed to the date of cancellation                $39,588.80 (b)      A royalty payment to Landmark Homes NZ Ltd        $19,455.85 (c)      Sales commission  $13,752.99 (d)      Loss of profit  $40,317.00

[5]      CLH acknowledged it had received payment of $35,163.50 from Mr Clark for…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Clark v Central Lakes Homes Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2016] NZHC 1694
Decision Date

CaseChat Overview and Summary

The appellant, Mr Peter Clark, appeals the entry of summary judgment against him by the District Court for a sum of money the Building Disputes Tribunal determined he owed to the respondent company, Central Lakes Homes Limited (CLH). The key legal issue was whether the adjudicator's determination was validly made under s 48(1)(a) of the Construction Contracts Act 2002, which would allow for enforcement by way of summary judgment under s 59. The Court held that the adjudicator's determination was validly made under s 48(1)(a), as the contract terms clearly provided for certain payments to be made by the owner in the event the builder terminated the contract. The distinction between damages under the contract and damages for breach of contract was recognised, and the liability for payment was held to arise under the contract itself. The Court also found that the presence of significant factual disputes between the parties did not prevent the entry of summary judgment, as the adjudicator's determination was binding on the parties and enforceable as a debt due. The appeal was dismissed, and the Court ordered the release of the funds held by the Registrar of the Queenstown District Court to CLH, together with interest and costs in the sum of $111,315.23.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.