George Grant Engineering Limited v Fabrication & Pipe Services Limited

[2021] NZHC 1281

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000123

[2021] NZHC 1281

IN THE MATTER OF

An application for summary judgment

BETWEEN

GEORGE GRANT ENGINEERING LIMITED

Plaintiff

AND

FABRICATION & PIPE SERVICES LIMITED

Defendant

Hearing:

11 May 2021

Appearances:

T J P Bowler for Plaintiff

V Whitfield and M J Meier for Defendant

Judgment:

2 June 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 2 June 2021 at 3.30 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date……………………….

GEORGE GRANT ENGINEERING LTD v FABRICATION & PIPE SERVICES LTD [2021] NZHC 1281 [2

June 2021]

Introduction

[1]                 There are two applications before the Court for summary judgment: one from the plaintiff, George Grant Engineering Ltd (GGE) and the second from the defendant, Fabrication & Pipe Services Limited (FPS).

[2]                 GGE sues FPS in both contract and tort, alleging that welding works FPS contracted to undertake for it at a new building in Te Rapa, Hamilton, were substandard and in breach of duties to exercise reasonable care and skill. GGE contends FPS is liable for losses GGE incurred remediating the defective welds.

[3]                 At issue is an exclusion clause that FPS contends was incorporated into a contract the parties entered into and means, so FPS says, that GGE’s claims cannot succeed.

[4]                 In response, GGE contends that the terms of the exclusion clause were not brought to its attention, not incorporated into the contract and cannot be upheld because the parties could not reasonably have intended such clause to apply to total non-performance of the services at issue.

Factual background

[5]                 FPS is an engineering company. It generally provides production, fabrication and manufacturing of specialist pipework. GGE is a larger business that specialises in a similar field.

[6]                 In January 2019, GGE was undertaking the steel supply and erection work for a retirement village under construction for Bupa Health & Care in Te Rapa, Hamilton (Bupa). GGE was a sub-contractor to Livingstone Building NZ Ltd.

[7]                 On 16 January 2019, Mr Joshua Filmer, who was at the time employed by GGE as a site manager, approached Nicholas Dent at FPS because GGE’s original welding contractor had pulled out of the Bupa project. Mr Filmer knew Mr Dent from his previous employment at FPS, where he had worked as a tradesman fabricator.

[8]                 Mr Filmer sent a follow-up email later that day, confirming their conversation, noting that ultrasonic (UT)1 testing would be done on all welds and suggesting the start date would be “Monday next week” (i.e. in five days’ time). Mr Dent responded that day, indicating that FPS’ welder could start as soon as possible “but we would prefer that our welder qualifies to the relevant GGE WPS2 for [manual metal arc welding] as he is not currently qualified. If this does not suit, we can qualify him to our WPS”.

[9]                 On 17 January 2019, Mr Filmer…