Home Builder Bop Ltd v Forman - [2017] NZHC 2155

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TAURANGA MOANA ROHE

CIV-2017-470-86 [2017] NZHC 2155

UNDER the Arbitration Act 1996

IN THE MATTER

of an Arbitral Award dated 10 May 2017

BETWEEN

HOME BUILDER BOP LTD Applicant

AND

NIGEL KELVIN FORMAN AND CLARE LESLEY TURNER AS TRUSTEES OF THE NK FORMAN FAMILY TRUST

Respondents

Hearing:
23 August 2017

(Heard at Hamilton)

Counsel:

T J Conder for Applicant
J Delaney for Respondents

Judgment:

31 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 October 2017 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Holland Beckett (Tauranga) for Applicant
Harris Tate (Tauranga) for Respondents

HOME BUILDER BOP LTD v FORMAN & TURNER [2017] NZHC 2155 [31 October 2017]

Introduction

[1] The applicant and the respondents have a long running dispute arising from renovations to a property owned by the respondents. The applicant contracted with the respondents to carry out the renovations. The respondents say they were overcharged and they are due refunds. The applicant denies this. The dispute turns on the interpretation of the parties’ construction contract.

[2] The parties decided to resolve their dispute by arbitration. They appointed Mr Derek Firth, MNZM as sole arbitrator. Mr Firth is a barrister and a very experienced arbitrator. He has particular experience as arbitrator of construction disputes.

[3] The parties agreed a procedure that would not require an oral hearing. In accordance with this procedure, they provided Mr Firth with the documents, including submissions, they thought he would need to determine their dispute.

[4] On 10 May 2017, Mr Firth made an interim award on liability. He found for the respondents. Quantum was left to be agreed by the parties in the light of the interim award, and failing that the parties could engage Mr Firth to decide quantum in a final award.

[5] I note that the sum claimed by the respondents at the arbitration was

$97,609.57 and the applicant had a counterclaim for $29,212.69.

[6] The applicant now seeks leave to appeal Mr Firth’s interim award.

Issues

[7] There are two issues I must decide: (a) Is there a question of law?
(b) Should leave to appeal be granted?

Questions of law?

[8] The applicant wishes to have the following questions determined on appeal:

(a) Did the arbitrator err in interpreting the contract by failing to conclude that the $38 rate for builders’ labour in the contract was a fixed price, not an estimate;

(b)Did the arbitrator err in interpreting the contract to mean that the 9 per cent margin did not apply to the labour of Mr Stuart Wood, the director of the applicant;

(c) Did the arbitrator err in concluding that claims in relation to payment claims 1-9 were brought within time; and

(d)Did the arbitrator err in failing to give reasons for his conclusions in subparagraphs (a) to (c) above.

[9] Only questions of law are appealable. Clause 5(10) of sch 2…

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.

Keep reading for free

Create a free CaseChat account to read Home Builder Bop Ltd v Forman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2155
Decision Date: 31 October 2017

CaseChat Overview and Summary

The applicant, Home Builder Bop Ltd, sought leave to appeal an interim arbitral award made by Mr Derek Firth, MNZM, in a contract dispute with the respondents, Nigel Kelvin Forman and Clare Lesley Turner as Trustees of the NK Forman Family Trust. The applicant sought leave to appeal on four questions of law, two of which related to the interpretation of the contract and two of which related to Mr Firth's failure to give reasons. The Court considered whether leave should be granted on the basis that the questions of law raised went to the heart of the dispute between the parties and that there was a strongly arguable case that Mr Firth had erred in concluding that the claims were brought within time. The Court considered the threshold test of whether there was a question of law before turning to the exercise of its discretion to grant leave. It found that leave should be granted in respect of the third question of law, that the claims were brought within time, because there was a strongly arguable point of law that the limitation period had expired. The Court found that leave should not be granted in respect of the first two questions because the Court could not find a very strong indication of error. It found that leave should not be granted in respect of the fourth question because Mr Firth had given sufficient reasons. Leave to appeal was granted in respect of the third question of law.

Orders