Ferrer-Aza v NZONE Race Management Ltd - [2016] NZHC 885

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1687 [2016] NZHC 885

BETWEEN
MATTEO PIETRO FERRER-AZA AND

JOSE GABRIEL FERRER-AZA First Plaintiffs

STEFAN JULIAN RIENER AND KARL STEFAN RIENER

Second Plaintiffs

DAMON LEITCH MOTORSPORT LTD AND DAMON BRYCE LEITCH

Third Plaintiffs

AND

NZONE RACE MANAGEMENT LIMITED

First Defendant

BARRIE JOHN THOMLINSON Second Defendant

Hearing: 3 December 2015

Counsel:

M R Crotty and H S W Farmer for plaintiffs
L A O'Gorman and A L Harlowe for defendants

Judgment:

4 May 2016

JUDGMENT OF KATZ J

This judgment was delivered by me on 4 May 2016 at 4:30pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Russell McVeagh, Auckland
Buddle Findlay, Auckland

FERRER-AZA & ORS v NZONE RACE MANAGEMENT LIMITED [2016] NZHC 885 [4 May 2016]

Introduction

[1] Three young international race car drivers, Matteo Ferrer-Aza, Stefan Riener and Damon Leitch (“Drivers”) competed in the 2015 Toyota Racing Series (“2015 TRS”), a high profile racing event aimed at helping develop the next generation of world class drivers. The intention was that all drivers would drive identical race cars, provided by the race organisers, NZONE Race Management Ltd, trading as Toyota Racing Management (“TRM”). The Drivers’ race results, in theory, should have simply been a reflection of their driving ability. Performing well in the 2015 TRS therefore had the potential to enhance the Drivers’ profiles, future career prospects and sponsorship opportunities.

[2] As part of its contractual commitment to competitors, TRM agreed to provide the Drivers with race worthy, competitive and safe race cars. For the 2015 TRS, Toyota NZ Limited (“Toyota NZ”) launched the FT50 race car to replace the previous FT40 vehicle, which had been used successfully in previous seasons.

[3] The Drivers and their representatives (who are the second named plaintiffs) say that they were induced to enter the 2015 TRS by representations regarding the quality of the FT50 cars made by TRM and its director Barrie Thomlinson. Contrary to those representations, and TRM’s obligation to provide race worthy, competitive and safe race cars, the plaintiffs say that they were provided with defective vehicles. In particular, they say that the vehicles they were provided with suffered a number of gearbox failures and other issues during the competition, which impacted on the Drivers’ overall performance. As a result, the plaintiffs have brought these proceedings in contract, tort, and for breach of the Fair Trading Act 1986 (“FTA”).

[4] The defendants do not dispute that there were some issues with the FT50 cars during the competition, particularly in relation to their gearboxes. They deny, however, that the FT50 cars were not race worthy, competitive or safe. They further say that, even if the cars were not race worthy, competitive or safe, the plaintiffs’ claims are barred by exclusion clauses, releases, covenants not to sue and indemnities in the relevant contracts (together, “the exclusion clauses”). The

defendants seek defendants’ summary judgment against the plaintiffs. In the

alternative, they seek to strike out some or all of the plaintiffs’ claims.

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: [2016] NZHC 885
Decision Date: 4 May 2016

CaseChat Overview and Summary

Ferrer-Aza v NZONE Race Management Ltd was a case brought by three international race car drivers, Matteo Ferrer-Aza, Stefan Riener, and Damon Leitch, against NZONE Race Management Ltd (TRM) and Barrie Thomlinson, its director. The drivers alleged that they were provided with defective vehicles during the 2015 Toyota Racing Series (2015 TRS), which negatively impacted their performance. They sought damages for breach of contract, tort, and for breach of the Fair Trading Act 1986 (FTA). The defendants denied that the cars were defective and claimed that the drivers' claims were barred by exclusion clauses in the relevant contracts. The central issue was the interpretation of these exclusion clauses, which the defendants argued should be broadly construed to cover all liability, including for breaches of contract and negligence. The drivers, on the other hand, argued for a narrow interpretation that would limit the exclusion clauses to risks inherent in motor racing, such as accidents. The High Court found that the exclusion clauses could not be confidently interpreted at the summary judgment stage due to insufficient contextual evidence. The Court held that determining the true meaning and effect of the clauses would require a full trial, where the parties could present evidence on industry norms and practices. As such, the defendants' summary judgment/strike out application was dismissed, and the case was allowed to proceed to trial.

Orders