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IN THE COURT OF APPEAL OF NEW ZEALAND
CA65/06
CA156/06
CA157/06
[2007] NZCA 355BETWEENDOWNER CONSTRUCTION (NEW ZEALAND) LIMITED
Applicant
ANDSILVERFIELD DEVELOPMENTS LIMITED
Respondent
Hearing:7 February 2007
Court:Chambers, Robertson and Arnold JJ
Counsel:D A R Williams QC, L J Lindsay, and S Robertson for Applicant
T C Weston QC and C M Meechan for Respondent
Judgment:16 August 2007 at 11 am
JUDGMENT OF THE COURT
CA65/06
AThe application for special leave to appeal out of time against the decision of the High Court dated 12 December 2005 is dismissed.
CA156/06
BThe application for special leave to appeal against what was alleged to be the High Court’s refusal on 13 February 2006 to grant leave to appeal to the High Court on certain questions of law is dismissed.
CA157/06
CThe application for special leave to appeal against the decision of the High Court dated 11 May 2006 is dismissed.
ALL APPEALS
DIn respect of all applications, the appellant must pay to the respondent costs of $15,000, plus usual disbursements. We certify for second counsel.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
The aftermath of a leaky homes arbitration [1]
Issues for our determination [11]
Should we grant special leave to appeal out of time against
Heath J’s decision? [17]
Did Randerson J refuse to grant leave with respect to certain
questions of law? [22]
What should be the test for leave to appeal from the High Court
to the Court of Appeal under cl 5(5) and (6)? [29]
Can an applicant for (special) leave to appeal to the
Court of Appeal widen the questions from those for which
leave to the High Court was granted? [38]
Do any of the proposed questions of law meet the special leave criteria? [45]
Costs [63]The aftermath of a leaky homes arbitration
[1] In 2000, Downer Construction (New Zealand) Limited, the applicant, entered into a contract with Silverfield Developments Limited, the respondent, to design and construct 65 townhouses in St Lukes, Auckland. Unfortunately, many of the townhouses started leaking shortly after completion. Silverfield called on Downer to make good the damage. Silverfield relied, among other things, on a warranty Downer had given that the completed contract works would be watertight.
[2] The parties could not agree on who was at fault and what should be done. The matter went to arbitration. The arbitrator, Mr Kennedy-Grant QC, delivered his first award on 26 August 2005. In essence, he found in favour of Silverfield. He held Silverfield was entitled to a declaration that, in respects he identified, Downer had breached its obligations under the contract by constructing the units in such a way that they were not watertight. He deferred the question of other relief to see whether the parties could resolve that for themselves.
[3] They were not able to. The arbitrator proceeded to consider relief. He determined Silverfield was entitled to an order for specific performance. He…
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- [2007] NZCA 355
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