Jade Residential Limited v Paul - [2019] NZHC 1484

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2018-441-29

[2019] NZHC 1484

BETWEEN
JADE RESIDENTIAL LIMITED

Applicant

AND

MURRAY PAUL AND MAREE PAUL

Respondents

Hearing: 9 May 2019

Appearances:

M Lawson for Applicant

K A Lomas for Respondent

Judgment:

27 June 2019

JUDGMENT OF GRICE J

[1] Jade Residential Limited (Jade) seeks leave to appeal to the Court of Appeal from the decision in Paul v Jade Residential Limited.1 That was an appeal from a decision of the District Court.2 Therefore an appeal to the Court of Appeal is a second appeal for which leave is required.

Background

[2]The background facts were set out in my original decision as follows:3

[1] In the District Court, Jade Residential Limited (the original plaintiff and the respondent here) obtained judgment against Mr and Mrs Paul (the original defendants and the appellants in this court) for a sum to be fixed at a subsequent hearing.

[2] The judgment concerned work Jade had done in the construction of the Pauls’ house in Havelock North. The house was finally completed after

1      Paul v Jade Residential Limited [2019] NZHC 304.
2      Jade Residential Limited v Paul [2018] NZDC 5673.
3      Paul v Jade Residential Limited, above n 1 (footnotes omitted).

JADE RESIDENTIAL LIMITED v PAUL [2019] NZHC 1484 [27 June 2019]

the Pauls purported to cancel the construction contract with Jade. The cancellation was precipitated by Jade ceasing to work on the job before the house was completed. Jade did so because the Pauls had not paid two milestone payments which Jade said were due.

[3] Jade made a claim for payment of the two milestone payments. The Pauls lodged a counterclaim for damages for the cost they had incurred to complete the house.

[4]Both parties now appeal against the District Court decision.

[3]I summarised the District Court’s findings as follows:4

(a)The Pauls could not lawfully cancel the contract because they had refused to go to dispute resolution and the contract contained a clause requiring the parties to go to mediation in the event of a dispute.

(b)Jade had not completed the contractual milestones. These were called the “closed-in” milestone and “lined” milestone. The milestones required completion before specified payments were due for each milestone.

(c)Failure to complete the milestones meant that there was no obligation on the Pauls to meet any progress payment at the time the accounts were rendered by The Judge found that while the Pauls unlawfully cancelled the contract, Jade was not “without fault”.

[6] Jade could not rely on the contractual milestone payments of $134,513 and $57,576—the amounts contained in the statement of claim—as the milestones had not been completed. The Judge concluded the most appropriate outcome would be for the Pauls to pay Jade for the actual work done, rather than the milestones. The Judge was of the view that Jade had not established exactly how much was owing to it for the work done. However, no evidence…

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: [2019] NZHC 1484
Decision Date: 27 June 2019

CaseChat Overview and Summary

Jade Residential Limited (Jade) sought leave to appeal to the Court of Appeal from the decision of the High Court. Jade had previously appealed from a decision of the District Court and this appeal would be a second appeal requiring leave. The High Court had allowed the appeal from the District Court but found that the Pauls had lawfully cancelled the contract based on repudiation by Jade. The Pauls had cancelled the contract because Jade had refused to return to the site and continue construction unless the Pauls paid two milestone payments which were not due under the contract. The High Court dismissed the appeal on the basis that the Pauls had lawfully cancelled the contract for repudiation by Jade. Jade now sought leave to appeal to the Court of Appeal. The court found that the grounds relied upon for leave to appeal did not meet the required threshold of raising a serious argument involving some interest, public or private, of sufficient importance to outweigh the costs and delay of a further appeal. Leave to appeal was declined.

Orders