| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA144/2017 [2017] NZCA 578 |
| BETWEEN | CONFIDENT TRUSTEE LIMITED |
| AND | GARDEN AND TREES LIMITED |
| Hearing: | 7 September 2017 |
Court: | Asher, Courtney and Gendall JJ |
Counsel: | W A McCartney for Appellant |
Judgment: | 8 December 2017 at 10 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
B The statutory demand served by the respondent on the appellant is set aside.
C The order for costs in the High Court in favour of the respondent is quashed.
DThe appellant is entitled to costs in the High Court on a category 2B basis together with any disbursements to be approved by the Registrar.
E The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
The appellant, Confident Trustee Ltd (CTL), appeals against a decision of Associate Judge Christiansen in the High Court at Auckland dated 16 March 2017 refusing to set aside a statutory demand served on it by the respondent, Garden and Trees Ltd (Garden and Trees).[1] The statutory demand claimed payment of $21,753.36 described as “the balance cost of services provided under invoice 1057 dated 8 March 2016”.
Background
Garden and Trees were contracted by CTL to clear a large 7.3 hectare site prior to earthworks for a residential subdivision development CTL was to undertake there. A contract price quote/estimate for the work of $58,420 was provided on 1 February 2016.
Timing was important. It is accepted by the parties that Garden and Trees had agreed to complete the required work under the contract within three weeks of commencement. CTL says time was of the essence because it had contracted with Cameron Civil Ltd for civil engineering earthworks to commence on the site in mid‑February 2016. Garden and Trees says, however, that when it planned to start the work early in February 2016 CTL advised it that it could not commence due to “consent” not being issued.
Although there is some dispute over what this might have meant, it is accepted now that earlier on 26 January 2016 resource consent for the work on the property had been issued to CTL.
Garden and Trees’ position, however, is that CTL did not advise it until 4 pm on 15 February 2016 that work could commence to clear and remove the vegetation on the site and it commenced work shortly thereafter. CTL says this was clearly not the case. It maintains that Garden and Trees had started work early in February 2016 but it was incapable of fulfilling the contract because its machinery was not suitable and it had insufficient labour to complete the work within the required three-week period. Bearing in mind that crucial and mandatory three-week requirement for completion, this progress was entirely unacceptable.
On 24 February 2016, CTL brought in another contractor to the…
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- Case
- [2017] NZCA 578
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that there were significant material conflicts in the evidence presented by the parties. The conflicting evidence included the date when Garden and Trees started the work, the adequacy of their equipment and labour, and the circumstances surrounding the termination of the contract. The Court concluded that the conflicts in the evidence were such that it could not be said that CTL did not have a credible defence to Garden and Trees' statutory demand. The appeal was therefore allowed, and the statutory demand was set aside. CTL was awarded costs in the High Court and on appeal, and Garden and Trees was ordered to pay these costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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