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Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd

Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd

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Case Copied 16 August 2007 28 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA65/06
CA156/06
CA157/06
[2007] NZCA 355
BETWEENDOWNER 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…

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: [2007] NZCA 355
Decision Date: 16 August 2007

CaseChat Overview and Summary

Downer Construction (New Zealand) Limited (Downer) entered into a contract with Silverfield Developments Limited (Silverfield) to design and construct 65 townhouses in St Lukes, Auckland. Unfortunately, many of the townhouses started leaking shortly after completion. The matter went to arbitration and the arbitrator, Mr Kennedy-Grant QC, found in favour of Silverfield. 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. The arbitrator proceeded to consider relief and determined Silverfield was entitled to an order for specific performance. Downer considered the arbitrator had made a number of errors of law in the awards. It sought the High Court’s leave to appeal to that court on those questions of law. Randerson J, Chief High Court Judge, heard the application and granted leave to appeal on one question of law said to arise out of the second award. Downer was now dissatisfied with the judgments of both Randerson J and Harrison J and sought special leave to appeal against the decision of the High Court. The issues that arose under this application were whether Downer should be granted special leave to appeal out of time against Heath J’s decision; did Randerson J refuse to grant leave with respect to certain questions of law; what should be the test for leave to appeal from the High Court to the Court of Appeal under cl 5(5) and (6); 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; and do any of the proposed questions of law meet the special leave criteria. The first issue, that Downer should be granted special leave to appeal out of time against Heath J’s decision, was dismissed. The second issue, whether Randerson J did in fact refuse to grant leave with respect to certain questions of law, was also dismissed. The third issue, the test for leave to appeal from the High Court to the Court of Appeal under cl 5(5), was determined to be the same as the test for leave under cl 5(1)(c). The fourth issue, whether any leave granted should be limited to questions for which leave to the High Court was granted and to questions substantially linked to them, was also dismissed. The final issue, whether any of the proposed questions of law met the special leave criteria, was dismissed. In respect of all applications, Downer was to pay Silverfield $15,000, plus usual disbursements.

Orders