George Developments Ltd v Canam Construction Ltd CA244/04 - [2005] NZCA 84

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA244/04

BETWEENGEORGE DEVELOPMENTS LIMITED

Appellant

ANDCANAM CONSTRUCTION LIMITED

Respondent

CA244/04
BETWEENGEORGE DEVELOPMENTS LIMITED

Appellant

ANDCANAM CONSTRUCTION LIMITED

Respondent

Hearing:9 February 2005

Court:Anderson P, O'Regan and Robertson JJ
Counsel:R J Asher QC and A H J Commons for Appellant

G J Christie and D A Welsh for Respondent

Judgment:12 April 2005

JUDGMENT OF THE COURT

A THE APPEALS ARE DISMISSED.
BThe respondent is awarded costs of $6,000, plus reasonable disbursements (including travel and accommodation costs of counsel, if any) to be agreed by counsel or, in the absence of agreement, to be determined by the Registrar.

____________________________________________________________________

REASONS

(Given by Robertson J)

Introduction
[1]       These are appeals from a judgment of Associate Judge Christiansen, delivered on 10 November 2004 in the High Court at Auckland on applications by, respectively, the appellant and the respondent, for summary judgment. The two applications were heard together.
Background
[2]       The appellant (George) was the owner of a property at 11 Cheshire Street, Parnell. It engaged the respondent (Canam) to demolish an existing building and to construct apartments on the site.
[3]       George and Canam entered into a demolition contract dated 2 April 2003 and a construction contract on 27 May 2003. The Construction Contracts Act 2002 (the Act) applied to both contracts. Section 3 of the Act enumerates as one of its stated purposes to “facilitate regular and timely payments between the parties to a construction contract”. Part 2 of the Act sets out the procedure to ensure such payments. Section 23 (which is specifically intended to ensure cash flow to contractors and subcontractors) provides that if a contractor issues a payment claim under the Act and a payment schedule is not issued or is not issued in time, the contractor is entitled to the full amount of its claim as a debt due.
[4]       Canam’s claims for payment were to be made pursuant to clause 12 of the Contract which incorporated NZS 3915: 2000 General Conditions of Contract.
[5]       The combined effect of the specific provisions of the contracts and the Act was that a mechanism existed for periodic claims to be made which had to be responded to in a timely manner.
[6]       Various claims were made. There was some dispute in regard to the 1 April 2004 Payment Claim (Payment Claim 12) and a part-payment was made. Regarding the balance, Canam invoked the adjudication process provided for under the Act. Their claim was upheld so that there was owing to them a total sum of $185,457.95 including GST, adjudication fees, interest and costs.
[7]       There was thereafter Payment Claim 13 that has not figured seriously in the litigation. There was no Payment Claim 14 but Payment Claim 15 was served by Canam on George on 3 June 2004. It included sums of money which had previously been invoiced and which were subject to adjudication under the Act but upon which the decision of…

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.

Continue reading George Developments Ltd v Canam Construction Ltd CA244/04

Details

AGLC: George Developments Ltd v Canam Construction Ltd CA244/04 [2005] NZCA 84
Case: [2005] NZCA 84
Decision Date: 12 April 2005

CaseChat Overview and Summary

This appeal concerns the interpretation of a payment claim made by the respondent, Canam Construction Limited (Canam), to the appellant, George Developments Limited (George), under the Construction Contracts Act 2002 (the Act). The appeals were dismissed and Canam was awarded costs. The main issue before the Court of Appeal was whether Canam's payment claim complied with the requirements of the Act. Specifically, the Court had to determine if the payment claim was in writing, identified the relevant period and construction work, and indicated the claimed amount and due date for payment. The Court found that the payment claim did comply with the requirements of the Act and that it was enforceable. The Court rejected George's argument that the payment claim was invalid because it included work done prior to the period stated in the claim and because it included claims for extension of time costs. The Court held that the Act should be interpreted in a way that facilitated regular and timely payments between the parties to a construction contract. The Court concluded that Canam's payment claim was valid and enforceable and that George was liable to pay the amount claimed by Canam.

Orders