Lund South Limited v AAA Tought Plumbing & Drainage Limited HC Dunedin CIV 2009 412 949
[2010] NZHC 879
•4 June 2010
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2009 412 000949
BETWEEN LUND SOUTH LIMITED Applicant
ANDAAA TOUGH PLUMBING & DRAINAGE LIMITED Respondent
Hearing: 11 May 2010
Appearances: T D Gudmanz for Applicant
T J Shiels for Respondent
Judgment: 4 June 2010 at 2.15PM
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on application to set aside judgment
[1] The applicant (“Lund South”) applies for an order setting aside a judgment obtained against it by the respondent (“AAA”) by default. AAA said it had in 2007 carried out plumbing work for Lund South on a 99 unit accommodation building at Arthurs Point, Queenstown. AAA said that a contract was created when Lund South accepted a quotation of AAA dated 15 March 2007.
[2] Lund South is one of a number of companies associated with Russell Lund –
it and Lund Central Limited (“Lund Central”) are the two relevant to this proceeding.
The principles and the matters for consideration
[3] The application is made under r 15.13 High Court Rules, which provides:
15.13 Judgment may be set aside or varied
LUND SOUTH LIMITED V AAA TOUGH PLUMBING & DRAINAGE LIMITED HC DUN CIV 2009 412
000949 4 June 2010
Any judgment obtained by default may be set aside or varied by the court on such terms as it thinks just, if it appears to the court that there has been, or may have been, a miscarriage of justice.
[4] Counsel agree that the Court’s discretion is unrestricted and that the relevant factors which may inform the Court’s judgment as to the justice of the case include those identified by the Court of Appeal in Russell v Cox [1983] NZLR 645. Those factors may be addressed in three questions:
a. Was the applicant’s failure to appear excusable?
b. Does the applicant have a substantial ground of defence?
c. Would irreparable injury to the respondent result if the judgment were to be set aside?
Was Lund South’s failure to appear excusable?
[5] The Court was presented with a body of affidavit evidence relating to the circumstances in which Lund South failed to file a defence within the required period. In the event, I do not find it necessary to set out or analyse that evidence in detail as there is one particular feature of the evidence, not in dispute, which leads me to the conclusion that Lund South’s failure to file a defence was excusable.
[6] Central to this conclusion is a consideration as to whether there is a real possibility that the notice of proceeding was not served on Lund South.
[7] AAA was able to obtain a default judgment because it filed an affidavit of service from a process server confirming that he had served the statement of claim and the notice of proceeding upon Lund South at its registered office. The deadline for the filing of a defence passed and AAA was able to enter judgment.
[8] The evidence for Lund South in this regard came primarily from Russell Lund. He had made inquiries which had tracked the receipt of the documents by an employee at the accountancy firm whose address was the Lund South registered
office, through to the partner in the accountancy firm to whom the documents were handed, and then through to Lund South itself by post. Mr Lund received the documents and passed them on to the Lund Central project manager. In the course of describing those events Mr Lund referred to discussions which he had with the people involved. This evidence was criticised by Mr Shiels for AAA upon the basis that it was hearsay. Submissions were addressed to me as to whether or not it was admissible hearsay. It is unnecessary for me to determine the admissibility of that evidence as it is other evidence which leads to my decision as to an excusable failure. I also record Mr Shiels’s concession that he was prepared to have the Court consider the evidence with the proviso that little weight should attach to some of it having regard to the fact that some of it had come in in reply.
[9] Mr Lund gives evidence that the only two documents filed in this proceeding which came to his attention following service were the statement of claim and the notice of date of standard track first telephone conference (“conference notes”). Mr Shiels submitted that on the evidence the Court could “be confident” that the notice of proceeding had been served at the registered office. He suggested that evidence given by Mr Lund as to subsequent efforts to search for the notice of proceeding was inadequate, leaving it as a likelihood that the document had been served. But Mr Lund said in his affidavits:
70.Once the partner [at the accounting firm] has looked at the documents to get a flavour as to what they are about, they are immediately sent to the client. That was done in this case – see paragraph 16 of my first affidavit. I have been told by Mr Wolfenbuttal and his staff that they send out all of the documents that are served at their office.
71.The envelope received at Lund South’s offices did not contain a Notice of Proceeding. The documents would have been received at our front desk or in the mail and placed into my mail pile. I recall receiving these documents – I had just walked in from a meeting about the Dunedin Stadium and the documents were at the top of my mail pile on my desk. We have not subsequently found a Notice of Proceeding in our office.
…
73....given that I did not receive the Notice of Proceeding and that there is no copy in Hubbard & Churcher’s office, I can only conclude that no Notice of Proceeding was served.
[10] While it remains a possibility that an administrative lapse or oversight within the offices through which the served documents passed has led to the notice of proceeding being mislaid after service, there is nothing in the evidence to positively indicate that that was the case.
[11] The legal assistant at AAA lawyer’s firm gave evidence of his letter of instruction sent to the process server. It referred to and identified the three documents to be served.
[12] The process server involved gave evidence of his procedure of service based understandably and responsibly on his practice and not from specific recall of the documents in question. The process server confirmed that it is his invariable practice when receiving sets of documents from solicitors for service to ensure that all the documents received are served. But the Court must recognise the possibility that there may be an accidental slip in even the most thorough and diligent system.
[13] In this case, there are three records of the process server which, through their express reference to only two documents rather than three documents, suggest that there is a real possibility that the particular document with which we are concerned – the notice of proceeding – was not served. First, the process server prepares and sends a record of service to AAA’s lawyers – it is headed “RECORD OF SERVICE OF NOTICE OF PROCEEDING & STATEMENT OF CLAIM”. Secondly, the process server produces a copy of his invoice to the lawyers. It refers to the documents served as being “NOP & SOC” (obviously being references to the notice of proceeding and the statement of claim). There is no reference in either the service record or the invoice to a third document which was to be served and which Mr Lund says was the document which he did receive with the statement of claim, namely the conference notice. Thirdly, when the process server swore his affidavit of service (on
27 January 2010) at a date closer to these events than now, he again referred to the service of the notice of proceeding and the statement of claim without reference to the conference notice.
[14] In these circumstances I conclude that there is real possibility that the only document which was served with the statement of claim at Lund South’s registered office was the conference notice.
[15] It was Mr Lund’s evidence that upon receiving and reading the notice of case management conference he believed that the date by which he had to deal with the claim was 19 April 2010 being the date identified for the case management conference. He recognises that the form contained the emboldened words “If you are the defendant/respondent you are also required to comply with the notice of proceeding served on you” but his evidence is that he did not have particular regard to that statement. It is, of course, his evidence that the notice of proceeding was not served at the same time. Therefore there was no other document identifying the deadline for a defence.
[16] A notice of proceeding stipulates that the statement of defence must be filed within 25 working days after the date of service. The conference notice contains no similar advice. If that latter document alone is served with the statement of claim upon a defendant the defendant cannot from the two documents received work out the deadline for filing a defence. The deadline is not stated in those two documents. The High Court Rules are premised upon the basis that defendants receive notice of the 25 day deadline.
[17] AAA entered judgment by default on 2 February 2010, before the first conference date of 19 April 2010.
[18] Mr Lund elaborated by saying that he was unfamiliar with Court procedures. Mr Shiels criticised that evidence, noting that in other parts of his evidence Mr Lund had referred to his experience of at least some Court procedures. I do not consider that evidence material. If it were suggested for AAA that by some means Lund South was aware all along of the deadline for a defence then that might have gone to the question of whether Lund South’s failure to file a defence was excusable. There is nothing in the evidence to indicate such independent knowledge of the deadline. In these circumstances, the failure to file a defence may be excusable.
[19] It is not necessary that I explore the case law which deals with cases in which it has been argued that judgment was irregularly obtained. Both counsel touched on that case law which suggests that in certain circumstances a defendant may be entitled ex debito justitiae to a setting aside: see O’Shannessy v Dasun Hair Designers Limited [1980] 2 NZLR 652 at 654 and Broadbank Corp Limited v Alexander (1986) 1 PRNZ 117. Ms Gudmanz did not submit that there should be an automatic setting aside. I would not have been prepared, in the absence of further argument, to decide that the circumstances giving rise to questions as to the service of documents in this case amounted to an “irregularity” of the nature discussed in the cases. I am inclined to the view, although I do not have to decide, that an overall discretion remains in most if not all cases: see Korochine 15 Limited v R P Charans Investments Limited HC Hamilton M338/94, 13 December 1994. (Reversed on appeal but not on this point: see R P Charans Investments Limited v Korochine Limited CA 272/94, 22 April 1996).
Has Lund South a substantial ground of defence?
[20] The Lund South amended application identified the following matters relating to the AAA contract allegations as constituting a substantial ground of defence:-
(b) There is a substantial ground of defence:
(i)That the Respondent has filed proceedings against the wrong company. The Respondent’s contract was with Lund Central Limited, not Lund South Limited:
(1) This is evidenced by the terms of the subcontract agreement provided to the Respondent on or about 29 May 2007;
(2)The Respondent accepted this contract by acting in accordance with its terms, including accepting payments on a time and materials basis;
(3)All payments were scheduled by Lund Central Limited and it is scheduling that is the key decision-making act;
(4) An earlier contract for work on the foundations was between the same parties
and any work carried out between 15 March and 29 May related to that contract, and did not amount to an acceptance of the 15
March quote (and indeed the Applicant was not in a position to accept the quote at that
time);
(5)The Respondent corresponded with and demanded payment from Lund Central Limited and committed other acts that amount to an acknowledgment that the contract was with Lund Central Limited, and was on the terms set out in the 29 May 2007 contract.
(ii) Even if there was a contract between the parties, it was on a time and materials basis and no further sums are owing:
(1) See further 2(b)(i)(1) and (2) above;
(2)The Applicant and Respondent agreed during negotiations after the submission of the 15 March quote that the contract would proceed on the basis of a guaranteed maximum price contract, with invoicing on a time and materials basis;
(3)The Respondent submitted claims and accepted payments on a time and materials basis, and otherwise acted in accordance with the 29 May contract rather than the 15
May quote;
(4)The Respondent has not submitted a final payment claim for payment; and
(5) The Applicant is entitled to make additional deductions to the sum claimed by the Respondent;
(iii) Even if there was a contract between the parties based on the Respondent’s quote of 15 March 2007, no monies are owing as:
(1)the contract has not been satisfactorily completed;
(2)the deduction allowed for the works yet to be completed is too low; and
(3) the Applicant is entitled to make additional deductions to the sum claimed by the Respondent.
...
[21] If a particular ground of defence would constitute a complete answer to the claim, it will generally be unnecessary to consider other grounds of defence.
Does Lund South have a defence upon the basis that it was the wrong defendant?
[22] The basis upon which AAA sued and obtained a judgment was its
15 March 2007 quotation. (Judgment was not sought or entered on the second cause of action, which was a quantum meruit claim).
[23] AAA alleged that the 15 March 2007 quotation was accepted by the defendant “by continuing to request and knowingly accepting the provision of materials and work by the plaintiff after receiving the quotation…”.
[24] Lund South accepts that there was a contract entered into with AAA. But it says that the contract was between AAA and Lund Central Limited and that it was entered into on or about 29 May 2007 when Lund Central signed a subcontract agreement and issued it to AAA. AAA did not sign and return the subcontract agreement. It is Lund South’s case that AAA accepted the subcontract agreement by carrying out work under Lund Central’s instruction after receipt of the subcontract.
[25] In relation to this issue (as in relation to the service issue) the Court received a considerable amount of evidence. Much of that evidence would have been invaluable had the Court been at trial resolving the issues between the parties on the balance of probabilities. But the threshold in the immediate jurisdiction is not answering such a trial question – rather, paraphrasing the usual test, I am required to determine whether there is any substance in the Lund South argument that Lund Central was the contracting party. Or, as a corollary, can I at a summary level rule out the possibility that Lund South’s substantive defence might succeed if default judgment is set aside and the case goes to trial.
[26] Both Ms Gudmanz and Mr Shiels conceded, with varying terminology, that the documentation of contractual arrangements relating to the Arthurs Point project
was unsatisfactory and messy. The matter was well summarised by Mr Shiels in his written submissions when he said:
It is futile, and/or arrogant to suggest that either the Plaintiff’s or the
Defendant’s paperwork is all that it should be.
The Court is presented with at least two competing versions of a contract, neither signed by both parties.
[27] Given the absence of written acceptance of the competing contractual documents, the parties provided evidence as to preceding and succeeding discussions and correspondence. It was common ground that the test out in Burrows, Finn and Todd Law of Contract in New Zealand (3rd ed, Lexis Nexis, Wellington 2007) at
3.4, is an accurate and applicable statement as to requirements for communication of acceptance:
The normal position is that there must be an external manifestation of assent, some word spoken or act done by the offeree or by his or her authorised agent which the law can regard as the communication of the acceptance of the offeror. An insufficiently communicated assent is not effective as an acceptance.
In the general run of cases the question for the Courts is whether the offeree’s words or conduct, objectively viewed, manifested an intention to accept the offer, so that normally no particular form of words or conduct is required.
What constitutes a sufficient manifestation of the acceptance to amount to communication to the offeror of the offeree’s intention to accept varies with the nature of the case and has provoked many difficult problems in the case law and a few attempts at statutory intervention.
[28] Both counsel sought to draw out of affidavit and documentary evidence support for their competing versions of the contract. Criticism was made, at least partly validly, as to the extent to which Lund Central’s evidence (said to be relevant to identification and construction of the contract) had come in in reply affidavits rather than original affidavits. The reality appears to be that as counsel worked through quite complicated factual matters in an interlocutory context, further aspects of the history seemed relevant and came to be covered by additional evidence. When the parties proceeded without a single document signed by both parties the evidential difficulties are hardly surprising. In my judgment, they point towards the
fact that the assembly of the full body of evidence relevant to the contracts, and the testing and analysis of that evidence, is likely to be possible only in the context of a trial. The point is illustrated specifically by the piecemeal introduction of email correspondence. While some emails have been produced and are relied on as evidentially important, the full email exchanges between the parties are not before the Court. I am not prepared to conclude that all relevant material is before the Court. Rather the gradual process by which relevant communications were put forward points towards relevant documents having been only identified gradually. In the absence of formal discovery the real possibility remains that further informative documents exist. It must also be a real possibility that as witnesses review the full documentation they be able to offer the Court a fuller or clearer recollection of material events.
Was Lund Central arguably the contracting party?
[29] The thrust of Lund South’s defence may be expressed in different ways:
a. Is it arguable that the AAA quotation of 15 March 2007 was not accepted by Lund South?
b.Is it arguable that AAA accepted the 29 May 2007 “subcontract agreement” offer of Lund Central?
[30] It is convenient to consider each of those questions in their logical chronological sequence, that is first (a) and then (b). I will first put the dealings between the parties in their historical context.
Stage 1 dealings: discussion
[31] The Arthurs Point construction project began in 2006 when Lund Central was engaged as the main contractor for the construction. There would be two stages. Stage 1 concerned the foundation and drainage. AAA undertook the plumbing and drainage work from November 2006 with no written contract. Andrew Bannerman
Tough is the sole director and shareholder of AAA. He deposed that he did not remember Mr Lund telling him which particular Lund company was involved with the Arthurs Point project. He says that Mr Lund certainly did not make it clear that it was Lund Central. He (Mr Tough) deposes that he assumed that it was Lund South. AAA completed Stage 1 on a time and materials basis. Mr Tough rendered AAA’s invoices to Lund South. On the other hand, the payment schedules which AAA received were expressly schedules of Lund Central. Mr Tough does not take issue with Lund’s evidence that the payments were made by Lund Central.
[32] Mr Tough refers to various communications with Lund personnel about the project during October to December 2006. He produces emails from an employee of “Lund South Limited” to AAA. It seems likely from the body of documents before the Court, including other emails, that Lund personnel did from time to time send out emails without particular regard to which company might be involved with a particular contract. It is also of some significance that Mr Tough in his evidence appears to say carefully that “At least some of these [communications in October to December 2006] were from Lund South Limited”. The Court must take it that Mr Tough recognises that other communications which may not be before the Court (and certainly the subcontractor payment schedules which are before the Court) may clearly indicate “Lund Central”.
[33] The Court was invited to consider the Stage 1 contract work as a matter of background which might inform the correct understanding of the Stage 2 contract. But the contract in relation to Stage 1 itself suffers from the documentary messiness which both counsel recognised in relation to the Stage 2 contract. It may be that upon full evidence at a trial a clearer picture of the Stage 1 contract might emerge by way of background, but in the context of this setting aside application and on the evidence before the Court in this application it is not possible to determine whether Lund Central or Lund South was the contracting Stage 1 party.
The lead-up to the 15 March 2007 AAA quotation
[34] In support of Lund South’s application to set aside the judgment, Mr Lund produced a copy of the AAA quotation dated 15 March 2007 which was referred to in the statement of claim. Mr Lund deposed, unsatisfactorily:
I acknowledge that this quote was addressed to Lund South. We did not pick up on this at the time. AAA had been receiving payment schedules for Lund Central for Stage 1. I would have thought it obvious that the work would continue to be carried out for the same entity. I view this as an administrative error by AAA.
[35] I say that this evidence is unsatisfactory because Mr Lund failed to note that it was Lund South, not Lund Central, which had sent to all trades the “Subcontractor Invitation to Tender” on 7 March 2007. It was to that invitation which AAA responded with its quotation dated 15 March 2007. In these circumstances the passage from Mr Lund’s evidence which I have quoted is at best careless and in any event misleading. The way in which AAA responded was in no sense “an administrative error” – it responded precisely as Lund South had invited it to do in relation to what Lund South’s invitation had described as “Lund South Subcontract Agreement”.
Events after the 15 March 2007 AAA quotation
[36] The AAA statement of claim implicitly acknowledges that there was no written or oral acceptance of the AAA quotation. Rather, AAA alleges that Lund South “accepted the quotation by continuing to request and knowingly accept the provision of materials and work by the Plaintiff after receiving the Quotation and Acceptance Form”.
[37] As that is the pleading on which AAA obtained the judgment, and remains the pleading, the Court’s primary focus must be on whether Lund South has a substantial defence to that pleaded assertion. I will therefore return to the evidence of provision of materials and work.
[38] First, I will deal with some other matters of evidence which Mr Shiels relied on in the course of his submissions as indicating evidence of acceptance of the quotation.
a. Past dealings – Mr Shiels emphasised the AAA view of the relevant parties under the Stage 1 contract. That was however a separate contract – there was no assurance on either side that the same parties would be involved in Stage 2. In any event, as I have reviewed that evidence, the correct identification of the Lund entity in Stage 1 is not clear. No assumption in relation to the contracting parties at Stage 2 should be carried forward from the Stage 1 contract.
b.Mr Lund gives evidence that Lund Central submitted its tender to the principal on 29 March 2007 and received the principal’s acceptance of the tender on 24 April 2007. Mr Shiels drew the attention of the Court to a handwritten notation on the Lund copy of the AAA
15 March 2007 quotation which read “AWD 26/4/07”. Mr Shiels noted that Mr Lund made no attempt to explain that notation. While accepting that it was “only speculation” Mr Shiels invited the Court to draw an inference that the “AWD” of the notation meant “awarded” and that this represented Lund’s record that the subcontract had been awarded to AAA on 26 April 2007. But Shiels was right to accept that what Lund meant by this notation is only speculation. There is also no evidence that any such decision to “award” was expressly communicated either on 26 April 2007 or later. The AAA case as to acceptance of the quotation must turn on the pleaded events and is not assisted by this notation.
[39] It is common ground that AAA’s 15 March 2007 quotation was not directly accepted either in writing or orally. It is also common ground that Lund Central subsequently submitted its form of subcontract agreement to AAA on or around
29 May 2007. Whereas the quotation had been for a fixed price ($567,649.11 plus GST) the subcontract agreement on a time and materials contract was subject to a guaranteed maximum price of $567,649.11. The subcontractor in the subcontract
agreement was identified as Lund Central. If it were ultimately to be found at a trial that the AAA quotation of 15 March 2007 had not been accepted before 29 May
2007 (whether expressly or by conduct) then the submitting of the Lund Central subcontract agreement on or about 29 May 2007, with its different terms, amounted in effect to a counter-offer and therefore a final rejection: see Burrows , Finn and Todd Law of Contract in New Zealand (3rd ed, Lexis Nexis, Wellington 2007) at
3.3.8.
[40] AAA pleads that the quotation was accepted by Lund South’s “continuing to request and knowingly accepting the provision of materials and work by AAA” (this being implicitly in the period from 15 March 2007 to 29 May 2007).
[41] AAA in its statement of claim provided no particulars as to the materials or work which were said to have constituted “acceptance” of the quotation. There is no particular identification of the work carried out (or materials supplied) between March and May 2007 which is said to relate to Stage 2 work rather than Stage 1 work.
[42] In its notice of opposition to amended interlocutory application AAA said in relation to this period:
Some of the work carried out by the Plaintiff [AAA] between
15 March 2007 and 29 May 2007 related to that earlier contract [Stage 1] and some of it did not. There was no legal impediment to the Defendant [Lund South] accepting the Plaintiff’s [AAA’s] 15 March 2007 quotation at any time between 15 March 2007 and 29 May 2007.
[43] It is common ground between the parties that Stage 1 work was continuing towards its completion after 15 March 2007.
[44] Of that period Mr Lund said:
27.After the issue of the quote, some minor work continued. In reality, this was a continuation of the work contracted for in December 2006 and very little work was carried out until 29 May 2007 (see further below):
(a) AAA was onsite for only four days between 15 March and
30 April (one man on 20 March, 3 April and 12 April, and 2 men on April 24).
(b) No work was required of AAA between the date of Lund Central’s tender acceptance by the principal on 24 April and the date when our subcontract agreement was sent to AAA (29 May). Two AAA workers were onsite for two days only in May 2007 (the 15th and 16th).
28.In both cases, AAA was completing stage 1 foundation drainage work that should have been completed earlier and was behind schedule. Copies of the relevant extracts from the site diaries are annexed and marked “RVL-7” (these record who was on site each day and what work was performed).
29.The reality is that Stage 1 work continued sporadically during this period on the previously agreed (and invoiced) time and materials basis.
[45] Mr Lund exhibited extracts from the site diaries.
[46] Mr Tough responded to this evidence:
39. Having looked at the site dairies for 20 March, 3 April 12 April and
24 April 2007 and my own records, I agree that the work done on those dates was part of Stage 1. However, having looked at the site diaries for 15 and 16 May 2007 (which also form part of Exhibit “RVL-7”) and my own records, I say that the work done on those dates was part of Stage 2. Stage 1 involved work outside the foundations and stormwater channels. The work described in the site diaries on 15 and 16 May is not in that category and is probably part of the Stage 2 work. I also say that I had two men on site on Thursday 17 May continuing the work done on the previous two days.
40.AAA attended on site when requested by the site foreman, Lindsay Roberts. The work might have been behind schedule but AAA was not responsible for this. I would frequently telephone Lindsay Roberts to ask whether he wanted us on site and he would advise whether he was ready for AAA to do plumbing work or not. Lund was bringing tilt slabs on site and erecting them. The plumbing work logically followed on after this. OSH requirements also would not have allowed us to go onto the site while the tilt slabs were being erected, within a danger area from the tilt slabs and the cranes working area.
[47] Mr Tough did not produce what he refers to as “my own records” so the relevant documentary record before the Court is that of the site diaries produced by Mr Lund.
[48] Mr Lund filed a reply to this evidence. He said:
31.I have checked the site diaries for 15, 16 and 17 May [Aff Tough para 39] There is no record of AAA being on site on 17 May. A true copy of the site diary for that date is annexed as Exhibit “N”.
32.The work described on 15 and 16 May is “putting in drains and overflows” behind particular units. It was part of Stage I work, which AAA was already required to carry out. At its simplest level, Stage I was doing the foundations, and involved the “in ground” work. State II was putting the plumbing into the hotel units (so putting in the pipes in the walls and the toilets, basins, baths etc). Drains and overflows go into the ground.
33.Having reviewed the 17 May diary entry, I see that Lund Central was just starting to erect the internal walls. Thus there is no way that those areas could have been ready for any above-ground plumbing work. Also, a considerable period of time elapsed before AAA issued its next bill, which confirms this as AAA would have wanted to work continuously for large periods on this Stage II work rather than starting a piece and then waiting some time before continuing.
34. I do note that the State I work increased in scope during the stage.
For example, stormwater became part of Stage I in February 2007. A true copy of the instruction to Lund Central is annexed and
marked “O”.
[49] The Court is not in a position to resolve in a summary context this dispute as to the classification of work carried out in May 2007. The allegations would require testing in cross-examination. They would also have to be the subject of much more detailed explanation and analysis of the records than is before the Court at present. Mr Shiels in the course of his submissions sought to take the Court to particular entries in the site diaries and to suggest that the work identified looked more like Stage 2 work than Stage 1 work. That is not an exercise the Court can embark on in the absence of detailed identification and explanation by qualified witnesses in evidence – it is an exercise that could only now be completed at trial rather than in this interlocutory context.
Is it arguable that the AAA quotation of 15 March 2007 was not accepted by
Lund South?
[50] On the evidence at present before the Court Lund South has a substantial and tenable argument that, just as the 17 March quotation was not accepted orally or in writing, it was not accepted by conduct before it was rejected by the 29 May 2007 subcontract offer from Lund Central.
Stage 2 dealings : discussion
[51] It is the Lund South case that the 15 March 2007 quotation was not accepted by Lund South and that contractual arrangements were put in place between Lund Central and AAA, which incorporated the terms of the 29 May 2007 “Subcontract Agreement”.
[52] There is therefore an inquiry for the Court as to whether Lund Central and
AAA arguably entered such a contract on or about 29 May 2007.
[53] It is convenient to consider, largely in chronological order, a number of incidents or aspects of the evidence which are said to be relevant to the alleged
29 May 2007 contract.
Evidence of Lund/Tough discussions
[54] The subcontract agreement contained as a special condition an emboldened statement, the first sentence of which reads “The contract is a time and materials contract, to a maximum of the quoted amount of $567,649.11, as discussed and agreed with Andrew Tough...”.
[55] Mr Lund in his evidence said that when the AAA 15 March quotation was received it concerned the principal because it was substantially higher than an earlier (2006) estimate. Mr Shiels in his submissions pointed to evidence indicating that the suggestion of an increase over the 2006 estimate is not correct. It is unnecessary, and it would be unsafe, for the Court to seek to resolve that matter in this interlocutory context – there is sufficient evidence to indicate that for whatever reason Lund Central at the time had it in mind to seek to move AAA to a guaranteed maximum price arrangement if possible. In a letter sent by Lund Central to the principal on 29 March 2007 Mr Lund suggested having the plumbing work completed by AAA on a time and materials basis with a guaranteed maximum price.
[56] In his evidence Mr Lund says that he called Mr Tough several times and emailed seeking explanations as to why the AAA cost was so high. He says that he
eventually managed to speak to Mr Tough by telephone. He says that he discussed overruns in the project budget and that he advised Mr Tough that he intended the contract to proceed on a time and materials basis. In other words, not on a fixed price basis. He says that he told Mr Tough that if AAA was not prepared to proceed on a time and materials basis, Lund Central would seek pricing and proposals from other plumbers. He says that Mr Tough then agreed to proceed on a time and materials basis.
[57] Mr Lund, in support of his evidence, says that this discussion with Mr Tough must have occurred before 2 April 2007, the date on which Mr Lund sent his tender documentation to the principal.
[58] In his evidence Mr Lund goes on to state:
25. Accordingly Lund Central stated to the principal in our letter of
29 March 2007 (sent by fax on 2 April 2007), a copy of which is annexed as Exhibit “RVL-5”, that the plumbing work would be carried out on a time and materials basis with a guaranteed maximum price (GMP), being the sum set out in the quote. Lund Central would not have made this commitment to the principal and indicated that we expected that cost savings would be made if we had expected to pay the quoted price. That would have meant that Lund Central would have taken a financial “hit”, and we were not prepared to do so.
26.Our tender was accepted by Dickson Enterprises on 24 April 2007 based on this clarification (i.e. that savings would be made owing to there being a time and materials contract with GMP).
[59] Mr Tough in detailed evidence in response to Mr Lund’s statements as to the telephone discussion denies that he ever agreed to vary his fixed price quote. He says that he did not at any stage agree to proceed on a time and materials basis. He says that he does remember Mr Lund telephoning after AAA submitted its quote and asking whether AAA would be prepared to do the job on a time and materials basis capped to the quoted price. He says however that he does not specifically recall the conversation which Mr Lund says he had with Mr Tough, the detail of which Mr Lund had set out in his affidavit.
[60] There are aspects of the evidence of Mr Lund, as highlighted in Mr Shiels's submissions, which do not appear to reconcile with the contemporary documents.
For instance, the 29 March 2007 letter of Lund Central which constitutes the tender is a tender on a fixed price basis. Lund Central’s other letter of 29 March 2007, contrary to Mr Lund’s evidence, did not contain a statement to the principal that the plumbing work would be carried out on a time and materials basis with a guaranteed maximum price. That was not a “commitment” which Lund Central made, as Mr Lund deposes. Rather, it was a mere proposal contained in the second letter of
29 March 2007. But while the documents might raise issues as to the credibility of Mr Lund’s evidence in some regards, it will still be for a trial Court to determine the content of the telephone conversation which clearly did occur. In that context, Mr Tough will for his part have to explain his understanding of the meaning of the statement in the special condition in the 29 May 2007 subcontract agreement that the contract was a time and materials contract, with a guaranteed maximum price of the quoted amount of $567,649.11, as discussed and agreed with Andrew Tough. It is Mr Lund’s evidence that although Mr Tough did not sign the contract, he did not query it either.
[61] Mr Tough says in relation to the receipt of the 29 May 2007 subcontract agreement:
41.When I received that document, I noted that it recorded the price that I had quoted. I was by this time doing work for Stage 2. I acknowledge that I did not read the document in detail. I did not particularly notice that it referred to Lund Central Limited. I acknowledge that it refers to a guaranteed maximum price. I had allowed in the price I had quoted for variations and extra work. It is inevitable on a contract of that size that there will be some unforeseen variations or extra work. Page 1 of the contract refers to a guaranteed maximum price. But special condition 29.1 on page 2 refers to the contract being on a time and materials basis to a maximum quoted amount “as discussed and agreed with Andrew Tough”. While Mr Lund had suggested this, I had not agreed to it and I have made that plain. I did not notice those provisions when I received the form of sub-contract agreement. I did not sign that form of sub-contract agreement.
[62] Mr Lund filed reply evidence disagreeing with Mr Tough’s recollection of their telephone conversation and giving a further detailed response.
[63] This Court in this summary context cannot resolve these disputes. There is equally no sufficiently clear evidence to allow the Court to speculate on a probable
trial conclusion as to whether or not Mr Tough read and understood the contents of the 29 May 2007 subcontract agreement in more detail than he deposes. If the trial Judge were to find that Mr Tough had fully read and understood the subcontract agreement, and that his work on Stage 2 commenced thereafter, then there may be a evidential basis for Lund Central to assert that on Stage 2 matters proceeded upon the basis of a contract between Lund Central and AAA along the lines contained in the subcontract agreement. That would be especially so if the trial Judge’s finding as to the precise date on which the Stage 2 work commenced is at a date not before but after 29 May 2007.
[64] Both parties relied on documentary evidence of the period after 29 May 2007. Both counsel presented detailed submissions as to what conclusions the Court might draw from what I will describe for convenience as “the post-contract conduct”.
[65] Mr Shiels, against the proposition that the Court ought to look at such post- contract conduct, made submissions as to the admissibility of such evidence. He accepted, in relation to the interpretation of a contract, that Gibbons Holdings Limited v Wholesale Distributors Limited [20008] 1 NZLR 277 (SC) recognises that the Court is entitled to have regard to the subsequent conduct of the parties. That applies at least where the conduct is shared or mutual. Mr Shiels noted the limitation on that approach as identified in the judgment of Anderson J at [73] where His Honour observed that the availability of post-contract conduct did not apply to an inquiry as to whether a contract existed. But in the present case there is common ground that a contract came to exist. Given the unsettled state of the law as to the potential limitation upon the use of post-contract conduct, it is not appropriate that this Court should rule out access to post-contract conduct.
The conduct of the parties after 29 May 2007
[66] It is the case for Lund South, as advanced by Ms Gudmanz, that the subsequent accounting between the parties is consistent with the contract for a guaranteed maximum price on a time and materials basis. That is to say, it is consistent with the subcontract agreement submitted by Lund Central to AAA and not consistent with the 15 March 2007 quotation for a fixed price submitted by AAA
to Lund South. In his submissions on this point Ms Gudmanz referred to the time and materials invoicing on the Stage 1 contract. She submitted that while the first few invoices on the Stage 2 contract were sent by AAA in accordance with a lump sum format, Mr Lund has explained that those were for small amounts and so were not questioned. She submitted that when the invoices increased in size, the basis of invoicing was corrected to time and materials and this was accepted by AAA. Ms Gudmanz’s submissions on the evidence are a fair summary of what Mr Lund said in the narrative of his affidavit. In that evidence Mr Lund also put emphasis upon the fact that the payment schedules issued made it explicit that payments were being withheld on the basis that time and materials did not match those being claimed by AAA. Mr Lund exhibited a payment schedule of Lund Central for the period ending 30 September 2007, dated 10 October 2007, which indeed reflected a time and materials approach and expressly referred to the contract as being:
Accepted GMP T & M Contract $567,649.11.
[67] A covering fax sent by Mr Lund to Mr Tough on 11 October 2007 expressly commented on the fact that the Payment Schedule calculation of the AAA claim had involved “a significant reduction in your claim”. The previous day Mr Lund had emailed Mr Tough in relation to the Arthurs Point project explaining that the project manager would be completing a detailed quantity survey of materials used. Mr Lund began the email with the statement to Mr Tough:
As you know the Arthurs Point plumbing & drainage work is a (sic) actual cost basis up to a GMP.
[68] Mr Lund then on or about 19 October 2007 had a conversation reported to him in which Mr Tough purportedly commented to the quantity surveyor that Mr Tough considered he had a fixed price contract and not a time and materials contract. Mr Lund emailed Mr Tough again on 19 October 2007 saying that Mr Tough’s position as reported was “untenable”. Mr Lund went on to assert the subcontract was on a time and materials cost reimbursement basis, to a maximum figure.
[69] On 25 October 2007 AAA (Mr Tough) emailed Mr Lund and said:
As we are collating our materials etc, for the Arthurs Point Job, please advise
Re: Special Conditions #29-29.1 what the required formatt (sic) is.
Please send an example of how you would like this presented as we don’t want to have to do this twice.
Also do you require these formatted every month, as we will have to get the men on-site to note down what is used every day.
Regards
Andrew Tough
[70] On 12 November 2007 Lund Central faxed a letter to AAA dealing with the amount and basis of payment for the AAA work to date and setting out requirements for further information, on an itemised schedule basis.
[71] Mr Lund’s evidence is that the value of works completed by AAA was physically measured by the independent quantity surveyor retained by the project manager. He says the quantity surveyor’s forms were sent to and filled in by AAA, with payment being made in keeping with a time and materials basis.
[72] On 28 March 2008 the functioning relationship between the parties came to an end when AAA, in Mr Lund’s words “walked off the job” before it was complete. That led to a need for the finalisation of the claim and of payment, including an adjustment for the value of work carried out by a new subcontractor to complete the AAA work.
[73] It was Ms Gudmanz’s submission that the conduct of the parties during the period when the contractual relationship was functioning is relevant to the construction of the contract and supports the Lund South case that the contract was a time and materials guaranteed maximum price contract between AAA and Lund Central. An alternative formulation of the Lund South case is that (as the obverse of the AAA argument that its 15 March 2007 quotation had been accepted by subsequent conduct) the 29 May 2007 subcontract agreement was accepted by AAA by its conduct in the period after 29 May 2007.
[74] For AAA Mr Shiels submitted that the conduct of the parties after 29 May
2007 was explicable otherwise than on the basis they both accepted terms of the 29
May subcontract agreement.
[75] Mr Shiels made his submissions against the background of the House of Lords decision in Brogden v Metropolitan Railway Co (1877) 2 App Cas 666. That case is authority for the proposition, as summarised in the headnote, that circumstances in the conduct of two parties may establish a binding contract between them, although the agreement, reduced into writing as a draft, is not formally executed by either. Mr Shiels relied particularly on a passage in the judgment of Lord Selborne, at page 689, where His Lordship in reaching the conclusion that the evidence established the existence of a contract observed that it appeared to him:
…that every single circumstance points unequivocally to this agreement.
[76] Mr Shiels submitted that the test applicable to conduct in such cases is whether the conduct is “explicable only on the assumption that they mutually approved the terms of the draft”. That may be to unnecessarily restrict the test in a case where a party is seeking to prove the existence and terms of the contract according to the civil burden. The formulation of the test in Brogden v Metropolitan Railway Co which I would consider more applicable and helpful is the following, which comes from the judgment of Lord Hatherley who was adopting the formulation submitted by Mr Herschell QC for the appellants at 682:
… This agreement is…to be held to be a binding and firm agreement between the parties, if it should be found that, although there has been no formal recognition of the agreement in terms by the one side, yet the course of dealing and conduct of the party to whom the agreement was propounded has been such as to legitimately to lead to the inference that those with whom they were dealing were made aware by that course of dealing, that the contact which they had propounded had been in fact accepted by the persons who so dealt with them. That really is the case which we have to try.
See also Burrows, Finn and Todd Law of Contract in New Zealand (3rd ed, Lexis Nexis, Wellington, 2007) at 3.3.1. The author’s comment in relation to Brogden v Metropolitan Railway Co that:
The difficulty was to determine when, if ever, an apparent mutual assent was to be found.
[77] Turning to the events after 29 May 2007, Mr Shiels’ submission commenced:
Here, the post-contract conduct is not consistent. Lund Central Ltd continued to make payments in response to invoices addressed to Lund South Ltd. Neither party was entirely consistent in their documentation.
(Mr Shiels’ reference to “neither party”, being to AAA on the one hand and Lund on the other).
[78] It was Mr Shiels’ submission that the post-contract evidence was entirely consistent with the 15 March 2007 quotation “subject to a lack of attention...to which Lund Company (sic) was a party”.
[79] Mr Shiels understandably placed greatest reliance in the period immediately after May 2007, upon the two AAA invoices in evidence (25 June 2007 and 20 July
2007). They were both addressed to Lund South and were presented on a lump sum basis, not by reference to time and materials. Mr Shiels acknowledged that the subcontractor payment schedules sent out were from and in the name of Lund Central but noted particularly references within those documents to “Lund South” and to “Accepted Contract Sum $567.649.11”. The evidence indicates that payment schedules of this nature were still being issued by Lund Central in September 2007.
[80] Ms Gudmanz, for Lund South, did not seek to develop a submission that the evidence established an acceptance of the 29 May 2007 subcontract agreement before October 2007. Rather, her emphasis was upon events around October 2007 when there were express references by the parties as to the contract upon which they were proceeding. On 25 October 2007 in the email to which I have referred to (above at [69])Mr Tough made specific reference to special condition 29 of the 29
May 2007 subcontract agreement and was at least arguably (viewed objectively)
intending to proceed on that contract.
[81] Mr Tough in relation to the October period said this:
47.I accept that in AAA’s email dated 25 October 2007 (Exhibit “RVL-9”) it referred to Special Condition 29-1. At this stage, we were concerned to get payment. I was aware that the plumbing was now being checked by a Quantity Surveyor. I did not know why. However, it is appropriate and reasonably common for an owner or head contractor to use a Quantity Surveyor to check progress payments, by reference to schedules of quantities, even for a fixed price contract. I was trying to assist by giving Mr Lund what he was wanting. Quantity surveying could not have been without full co- operation from me. Mr Dickson could not attend the site but had a Mr Peter Austin attend on his behalf. However, this was generally only once a month and sometimes not even that. Without full co-
operation from me, he would have had no ability to provide Quantity Surveyor schedules for plumbing work. For example, much of the work was behind walls or covered up in various other ways by the time he visited the site.
And he further said:
49.I accept that at various stages from and after October 2007, either Mr Lund or Mr Trench said that the contract was on a time and materials basis. I did not agree.
[82] The Court focuses on what was said or done by the parties – the Court will not look to the parties’ subjective view or understanding. Mr Tough has explained what was in his mind, but that is not relevant in this context. There is enough in the evidence before the Court in this summary context to suggest that a trial Court with full information might find that the evidence objectively establishes an acceptance of the 29 May 2007 quotation. The Court may, for instance, have to examine whether and in what form Mr Tough says he expressly disagreed with the Lund/Trench statements that the contract was on a time and materials basis. While in his evidence he says: “I did not agree”, he does not say that he expressed disagreement. In Mr Lund’s evidence relating to the October emails he recorded that AAA so far as he recalled did not respond to the emails and did not question that the contract was on a time and materials basis.
[83] It is common ground that from October 2007 payment claims were dealt with by Lund Central on a time and materials basis.
[84] The evidence before the Court is less than complete. The Court was not provided by either party with a complete set of invoices or a complete set of payment schedules. Equally, in this summary context, the Court has not had a testing of evidence in relation to exactly what was said and done particularly in the October
2007 period.
Is it arguable that the 29 May 2007 subcontract agreement was accepted by
AAA?
[85] I find that Lund South does have an argument open to it, which can only be satisfactorily explored at trial, to the effect that conduct of the parties after 29 May
2007 may establish either that the terms of a contract then reached were as Lund South argues or that the conduct of AAA in and around October 2007 amounts to a belated acceptance of the terms of the 29 May 2007 subcontract agreement.
Other evidence of acceptance
[86] Upon the basis of the conclusions I have reached, it is unnecessary to address some other aspects of Ms Gudmanz’s submissions in support of the proposition that Lund South and AAA had agreed on contractual terms. I mention two examples. Mr Lund produced a letter dated 31 March 2008 by which AAA made demand upon Lund Central (not Lund South) for payment of a balance owing under the contract. Secondly, when Lund Central had outstanding claims for defective work, it claimed against AAA in the Disputes Tribunal, which made an order for payment, by AAA to Lund Central. Lund Central received payment from AAA of the sum ordered ($6,706). Mr Tough’s evidence was that he dealt with the substance of the claim and did not take issue about who the claimant was.
[87] As I have reached a conclusion as to arguable grounds in other regards it is appropriate that the weight, if any, to be attached to these matters is left to the trial Court.
Quantum meruit
[88] The plaintiffs’ alternative formulation of its claim (second cause of action)
rests on the proposition that:
the plaintiff and the defendant did not reach a contractual agreement.
AAA then pleads that Lund South has been unjustly enriched through the supply of labour and materials. Lund South then seeks on a quantum meruit (or quantum valebant) basis a sum of $144,401.79. This may be contrasted with the sum of
$204,356.60 sought on a contractual (first cause of action) basis.
[89] It is unnecessary for the Court to reach any conclusion on the quantum meruit claim as it was not the basis upon which judgment was entered. Judgment was entered for the higher sum claimed under the contract claim.
[90] In the Court’s view the very existence of the pleading of the quantum meruit (“the plaintiff and the defendant did not reach a contractual agreement”) and the lower quantum of that claim reinforce the Lund South application for a setting aside of the default judgment based on the contractual claim. In suing Lund South on a second cause of action, inconsistent with the first, AAA might be taken to have recognised the possibility that there was an argument against the existence of the pleaded contract.
Alternative defences – no money owing
[91] Lund South, in the event that its “AAA/Lund Central contract” argument did not meet the threshold, developed alternative defences to the effect that no money would have been owing under the 15 March 2007 quotation. Having regard to the conclusions reached on Lund South’s argument that it was not the relevant contracting party, it is unnecessary that the Court determine these alternative arguments.
[92] I refrain from expressing any conclusion in regard to those alternative arguments – they will be matters to be explored and determined at a trial.
Might Lund South suffer irreparable injury if the judgment is not set aside
[93] If the judgment obtained by AAA is not set aside Lund South will be required to pay the judgment sum or face liquidation proceedings. If AAA were to choose the
latter course Lund South would be faced with defending the liquidation proceedings and the costs of that proceeding.
[94] Regardless of the unsatisfactory documenting of contractual arrangements as between Lund and AAA, there is evidence that the principal’s contract was with Lund Central and there is no evidence to suggest that Lund South received any entitlement of Lund Central under the principal contract. Accordingly, if the judgment is not set aside, Lund South will be required to make a payment of
$295,553.83 plus interest in relation to a contract from which it may not have benefited. While Mr Shiels made some submissions around the fact that there was clearly a close relationship between Lund Central and Lund South, it is not for this Court to speculate as to whether and to what extent and on what terms Lund South might obtain indemnity from Lund Central.
Miscarriage of justice
[95] I accept Ms Gudmanz’s submissions that this litigation is about a substantial contract where there are substantive disputes which go to the heart of the default judgment. The issue over the identity of the Lund contracting party is the foot which gets the applicant inside the door but the correct identification of contractor and subcontractor claims and cross-claims is one which (because of the default judgment) did not become the subject of submission or argument with a view to obtaining an adjudication. Significantly, AAA did not apply for summary judgment
– an inference is that neither Mr Tough nor counsel considered that Lund was without an arguable defence.
[96] The fact that the Court is not satisfied on the evidence that Lund South received the notice of proceeding is an additional matter going to the justice of the case – added to the other factors it would clearly be a miscarriage of justice were Lund South to be faced with a need to pay up on a default judgment obtained in circumstances where it has established an arguable defence.
[97] I order:
1. The judgment of this Court dated 2 February 2010 is set aside.
2. The proceeding is adjourned to a case management conference at 9am
16 June 2010, by telephone. Counsel are to file three working days before the conference preferably a joint memorandum providing a proposed timetable of all steps to the completion of interlocutory issues. The timetable is to address whether Lund Central Limited should be joined as second defendant and, if so, the timetabling for that. It should then cover in order the timetable for amended pleadings, discovery, inspection, and any other interlocutory attendances.
Costs
[98] I reserve costs.
[99] In relation to a successful application where the applicant is truly seeking an indulgence, the applicant although successful might normally pay costs in any event. By reason of the finding the Court has made as to the possibility of the notice of proceeding not having been served, the present is not a case of simple indulgence. The plaintiff chose to have judgment entered by default in circumstances where it might have anticipated that the absence of a defence had come about by mistake or oversight. The Court’s tentative view is that costs of the application should be fixed on a 2B basis and those, together with disbursements, should be costs in the cause. If that is not accepted, then AAA is to file a memorandum (limited to three pages) within five working days as to its position on costs and Lund South is to file its memorandum in reply (limited to three pages) within five working days thereafter. Unless requested otherwise, the Court will then determine any costs issue on the papers.
[100] If a compromise of claim and counterclaim is not reached in the near future, the parties to this litigation are about to embark upon time consuming and expensive litigation. They belong to an industry which has a tradition for resolution through mediation and arbitration. Each will be familiar with the regime of the Construction Contracts Act 2002. Each is likely to understand the real benefits that a prompt form of adjudication of the issues by an expert may confer. Counsel are to advise the Court in the memorandum to be filed for the case management conference whether any agreement has been reached on alternative dispute resolution. If not, then in relation to this proceeding which was commenced in November 2009 the Court will ensure that a strict timetable is put in place for the case management of this proceeding.
Was the judgment sum in relation to a liquidated sum?
[101] In the course of deliberating over this judgment, a point emerged on which neither counsel had addressed submissions. As it was not an aspect of the Lund South application and as I have come to a conclusion that the application must be allowed on other grounds, I did not revert to counsel for further submissions. The point should nevertheless be noted and it is this. The AAA claim in contract was for the balance of an alleged price of $567,649.11 plus GST. But, as AAA’s statement of claim records, it stopped work in late March 2008 when some materials and labour had still to be supplied. What Lund South then did in its statement of claim was to say that:
The fair price for the materials and labour still to be supplied and the trips still to be undertaken was $56,250 (being $50,000 plus GST of $6,250).
AAA then sought judgment for the full price less the “allowance” and obtained a default judgment on that basis.
[102] I received no submissions as to whether AAA’s assessment of $50,000 plus GST as a “fair price” constituted a liquidated sum. Nor did I receive any submissions as to whether the reduction of that “fair price” from the agreed contract
price itself constituted a liquidated sum. If the answer to either of those questions was “no” then arguably judgment should not have been entered by default.
[103] Given my conclusion on other issues, I do not determine this issue.
Solicitors:
Gallaway Cook Allan, Dunedin, for Applicant
Downie Stewart, Dunedin, for Respondent
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