Mason & Wales Architects Limited v Welo

[2023] NZHC 2308

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-1

[2023] NZHC 2308

BETWEEN

MASON & WALES ARCHITECTS LIMITED

Plaintiff

AND

THOMAS PETTER ANDREAS WIEL WELO and BEVERLIE WELO

Defendants

Hearing:

7 August 2023

Appearances:

S Caradus for Plaintiff

G M Sandelin and E F Armstrong for Defendant

Judgment:

23 August 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

MASON & WALES ARCHITECTS LIMITED v WELO [2023] NZHC 2308 [23 August 2023]

[1]    In 2011, Mason & Wales Architects Limited (M&W) designed a substantial home for Mr and Mrs Welo (the Welos) in Glenorchy on Lake Wakatipu. The Glenorchy property was completed in early 2013. Mr Hamish Muir of M&W became the Welos’ primary contact for that project.

[2]    The Welos live in Scotland and in 2013 they planned to build a substantial new home on a rural property in Aberdeen, Scotland called Hilton House. The Welos wanted to substantially recreate the Glenorchy property in Aberdeen (the Hilton project), so M&W became involved in that new project.

[3]    It is not in issue that M&W designed the Aberdeen home or had a substantial involvement in its construction before and after the completion of the design stage. While the Aberdeen home was finished around early 2018, M&W waited until December 2021 to issue what it says are its final invoices for that project. The Welos say they are not liable to pay any of the December 2021 invoices. M&W seek summary judgment in respect of the unpaid December 2021 invoices.

[4]    The three invoices involve separate aspects of the Welos overall project. They cover:

(i)interior design (£35,000 invoiced as NZ$67,500);

(ii)the design of a farm manager’s cottage on a neighbouring property owned by the Welos (NZ$14,500);1 and

(iii)additional architectural work not covered by the fixed price payable under what M&W say is a written contract it entered into with the Welos (NZ$200,000).

[5]    It may be the success of the Glenorchy build resulted in M&W’s involvement with the Hilton project getting ahead of the formalities of completing contract documents as well as substantial work being done where fees were left to be agreed.

1      The neighbouring farm is called Hillhead. The Welos’ build is known as the Hilton project.

Nonetheless, as I have said, the Hilton project is complete. The Welos do not complain about the workmanship provided by M&W.

[6]    M&W rely on a New Zealand Institute of Architects Agreement for Architect Services  (NZIA  contract)  between  it  and  the  Welos  which  was   signed  on     6 December 2016. Work on the project was well underway by 6 December 2016, indeed a number of invoices had already been raised and paid by the time the NZIA contract was signed.

[7]    Mr Muir says the NZIA contract was executed on 6 December 2016, albeit it had been sent some months earlier. He says it was signed at a restaurant during one of his project visits to Scotland. Under the NZIA contract, a company called Triple Star Management Limited (Triple Star) is the project manager and quantity surveyor and is named in the NZIA contract as the Welos’ representative. Triple Star had also been involved in the Glenorchy project. Mr Sandelin, counsel for the Welos, did not dispute that Triple Star was the Welos’ representative for the build or that Triple Star “… has authority to give instructions to the Architect on the Client’s behalf” as per  cl D3.1(a) of the NZIA contract.

[8]    Mr Welo, in his evidence says he has not located a fully executed copy of the NZIA contract in his files and that he does not recall meeting Mr Muir at a restaurant and signing that contract. However, Mr Welo does not deny signing the NZIA contract. As will be apparent from the discussion of the emails that follow, Mr Welo and his representative, Triple Star, worked on the basis that the NZIA contract governed the Hilton project.

[9]    I am satisfied there is no reasonably arguable defence to M&W’s case that its relationship with the Welos, at least in part, is governed by the NZIA contract dated  6 December 2016.

Separate agreements for interior design/farm manger’s accommodation?

[10]   The NZIA contract in Part B8 under the heading “Additional Services” lists as examples of additional services, “Work relating to Farm Sheds or Farm Manager’s Cottage” and “Interior Colours and Finishes”. By December 2016, work had already

been undertaken in relation to the farm manager’s cottage. I will return to the issue of whether the farm manager’s cottage is a separate engagement or an additional service under the NZIA contract and more importantly, whether that difference is significant.

Interior Design invoice

[11]   As to the interior design aspect of the Hilton project, this work was originally to be undertaken by a third party consultant. It is common ground that the involvement of the third party consultant ended in February or March 2017. M&W then became directly involved in the interior design work albeit they had already been liaising with the prior designer.

[12]   By mid-2017, Mr Muir had foreshadowed to the Welos claims for the work covered by three invoices disputed in this proceeding. Mr Welo responded to those claims in an email of 2 June 2017 to Mr Muir, copied to representatives of Triple Star (and to Mrs Welo), with the subject heading NZIA Agreement for Architects Services dated 6 December 2016. Mr Welo said in respect of the interior design issue:

Part C, C2 Consultants, covers Specialist Consultants, including interior design consultant named as Roz Hamilton Interiors. Hamish (M&W) has taken over that role and budget for that is GPB 35,000.

[13]   This shows Mr Welo writing with the NZIA contract in the subject line and referring to Part C of the NZIA contract where consultants were listed. Mr Welo in doing so confirms his acceptance that the NZIA contract governed the Welos’ relationship with M&W.

[14]   It also confirms beyond doubt that M&W had taken over the role and budget for interior design.

[15]   The 7 December 2021 invoice for interior design charges £35,000 “as agreed” converted as to NZ$67,500.

[16]   Mr Sandelin, counsel  for the Welos,  noted the  2 June 2017 email refers to   a budget for the interior design rather than a fixed fee.

[17]There is no evidence that Mr Welo agreed to convert the budget to a fixed fee.

[18]   Mr Welo, in his evidence, suggests the interior design costs were covered in two invoices; one dated 10 April 2017 and the other dated 5 October 2017. I am satisfied that is incorrect. The 10 April 2017 invoice addressed to Mr & Mrs Welo, care of Triple Star Management, lists under a number of headings the work undertaken by M&W and in respect of a number of headings there is no fee specified but “to be agreed” is recorded. For example, under the heading “Additional Services”, there are a number of items listed including: “Work relating to Farm Sheds or Farm Managers Cottage”, “Interior Colours and Finishes – selection and scheduling of Floor, Wall and Ceiling Materials” and “FF&E (Furnishings, Fixtures and Equipment) Design Services”.

[19]   In respect of the work under the heading “Additional Services”, the fee is also recorded as “TO BE AGREED”. Under the separate heading “Interior Design/FF&E/Joinery” there are a number of specific items listed. The fee is described as being “calculated in accordance with the NZIA Agreement for Architects  Services - Time Charge Basis, as per Agreement” and listed as “TO BE AGREED”.

[20]   In respect of the second invoice relied on by Mr Welo, as covering the interior design (5 October 2017), there are a number of items listed under the heading “ADDITIONAL   SERVICES  ARCHITECT  DIRECTOR:  APRIL- SEPTEMBER 2017” including “Coordinating Interior Details, Colours and Finishes” and which, at the bottom of the list has: “Architectural Director @$280/hr TO BE AGREED”.

[21]   In my view, two things are clear. Firstly, the invoices do not record the Welos having been charged for and paying for interior design work. The invoices relied on identify work in relation to interior design but do not raise a charge for those items. Secondly, the invoices, to the extent that they refer to interior design, refer either to the charge being on an hourly rate or pursuant to the NZIA terms and not to an agreed set fee of £35,000.

[22]   In my view, it follows that M&W were instructed to carry out the interior design work, which it did. There is no complaint about the completion of its work or the quality of that work. There is an issue over the quantum of M&W’s fee. I will

return to what these conclusions mean in respect of the summary judgment application when I consider the major defence raised by the Welos.

[23]   Whether the interior design work was seen as being absorbed into the NZIA contract or M&W taking over the separate engagement with the prior consultant, probably does not matter. M&W were engaged to do the work, did so and have not been paid for it. There is no evidence of a fixed fee. M&W’s invoices indicated it was going to charge an hourly rate – no issue was taken with that at the time.

The farm manager’s cottage – invoice 2

[24]   As mentioned earlier, the NZIA contract lists work on the farm manager’s cottage as being an additional service under the NZIA contract. M&W had included reference  to   work   on   the   farm   manager’s   cottage   in   its   invoice   dated   20 September 2016 which included the heading “ADDITIONAL SERVICES” under which was listed: “Services Relating to Hillhead Manager’s Cottage”. The fee was recorded as: “calculated in accordance with the NZIA Agreement for Architects Services – Time Charge Basis”. However, the invoice did not include a figure, only “TO BE CONFIRMED”. The same is true of invoices dated 30 November 2016 and of an invoice dated 5 December 2016.

[25]   The farm manager’s cottage is expressly recorded as being outside the fixed fee for the work identified in the NZIA contract, as discussed in more detail below.

[26] In the 2 June 2017 email (noted at [12] above), Mr Welo said in relation to the farm cottage:

Farm Manager’s Cottage – an addition that should remain separate from the Hilton Project. This should be under heading of Hillhead.

Please provide costs for this backed up by time sheets in accordance with Part D, articles 15.1 and 15.2 and Part C, fees, C1. All subject to A1 Contract Agreement, second paragraph down (no amendment to this Agreement will be binding unless agreed by both parties in writing).

[27]    There are emails between Mr Muir and Mrs Welo, starting on 4 June 2016 in respect of the farm manager’s cottage. Mr Muir had been doing research on prefab/kitset options.

[28]   Mr Muir’s email of 1 July 2016 to Planning Consultants copied to Triple Star said:

The Client strongly prefers managers house to be located on footprint of original cottage,…

[29]   Mrs Welo emailed Mr Muir on 8 July 2016 asking: “What is the status of farm cottage for planning purposes?” Mr Muir replied with a planning status update.

[30]   The email exchanges show that both the Welos and their representatives, Triple Star, were aware of the work M&W was undertaking on the farm manager’s cottage.

[31]   At no point did Mrs Welo or the Welos’ representative, Triple Star, take issue with the work being undertaken by M&W.

[32]Accordingly, I cannot accept Mr Welo’s assertion that:

… there was never any agreement in respect of the farm manger’s cottage, and I still do not understand Mason & Wales’ claim in this regard.

[33] This is an issue of quantum rather than liability. Mrs Welo was clearly instructing Mr Muir to undertake work on the farm manager’s cottage which, albeit included a prefab/kitset element, which was to include input from M&W. Mr Welo in the email at [26] above is confirming M&W’s involvement in the build with reference to the terms of the NZIA contract but Mr Welo asks for time sheets to justify any claim. I am satisfied Mr Welo in his 2 June 2017 email accepted charging for the work on the farm manager’s cottage would be pursuant to the NZIA contract.

[34]   I will return to the effect of this conclusion when considering the main defence of the Welos.

Claim for additional services under NZIA Contract – invoice 3

[35]   This is the largest part of M&W’s claim, being a charge of $200,000 which is calculated as follows:

FEE calculated in accordance with the

NZIA Agreement for Architects Services, dated 21 September

2016, signed T Welo, 6 December 2016 in Scotland

Architect Director    say, 500 hrs @ $280/hr     $140,000.00 Registered Architect  say, 500 hrs @ $180/hr                    $90,000.00

Sub Total  $230,000.00

REDUCED FEE  $200,000.00 $200,000.00

[36] This charge is also referred to in Mr Welo’s email of 2 June 2017, referred to at [12] above which in turn referred to an email from Mr Muir of 31 May 2023. Mr Muir, in his 31 May 2017 email referred to an invoice dated 10 February 2017. Mr Muir’s covering email for the 10 February 2017 email recorded:

Note that this invoice compete [sic] the agreed scope of services for the project. It also describes Additional Services that we have carried out as instructed, which need to be negotiated to get agreements up to date and clarify the way forwards for [the] project through to completion should ongoing involvement be required.

[37]   The additional services in  the  10  February  2017  email  are  listed  in  the 10 February 2017 invoice under a number of headings such as: “BUILDING WARRANT”, “ADMINISTRATION AND OBSERVATION”, “ADDITIONAL SERVICES”, “VARIATIONS TO THE WORK”, “SHOP DRAWINGS”, “LANDSCAPE DESIGN”, “FIRE DESIGN”, “ELECTRICAL/ LIGHTING DESIGN”, INTERIOR DESIGN / FF& E / JOINERY”. The fee for each, as already noted, recorded as to be “calculated in accordance with the NZIA Agreement – Time Charge Basis”. These are the costs claimed in invoice 3, subject to any overlap with the interior design invoice.

[38]   Mr Welo’s  email  of  2  June  2017,  as  I  have  said,  refers  to  Mr Muir’s  31 May 2017 email which in turn referred to the 10 February 2017 invoice just referred to. Mr Welo in his 2 June 2017 email said:

Email from Hamish 31 May 2017. What Hamish (M&W) defines as Additional Services and Variations to the work is covered in Part B Scope of Services as normal in developing the final design.

[39]The NZIA contract sets out eight stages for the purposes of charging, as below:

Stage	Lump Sum	Time Charge
B1 Pre-Design	-	-
B2 Concept Design	$75,000.00	-
B3 Preliminary Design	$100,000.00	-
B4 Developed Design	$175,000.00	-
B5 Detailed Design and Documentation	$200,000.00	-
B6 Contractor Procurement	-	TBC
B7 Contract Administration and Observation	-	TBC
B8 Additional Services	-	TBC
Total	NZ$550,000.00

[40]   In turn, what is covered by B6, B7 and B8 above is set out in detail in the NZIA contract.

[41]   Mr Welo does not deny the additional services provided or the quality of the work identified in the 10 February 2017 invoice (or the December 2021  invoice).  Mr Welo’s email of 2 June 2017 records that he considered those items to be included in the fixed price contract or, were a natural part of the work covered by the fixed price services, that is, part of B1 to B5 above. However, it is clear the additional services for which M&W wish to claim for are specified in the NZIA contract as being outside the fixed priced work being specifically listed in B8.

[42]   On 9 June 2017, the Welos’ representative, Triple Star, emailed Mr Muir again under  the  subject   heading   “NZIA  Agreement   for   Architects   Services   dated 6 December 2016” and advised Mr Muir:

Just to keep you in the loop; I’ve spoken to T&B about your additional fee proposal a couple of times since you left and the easiest way to get this resolved is a simple breakdown and clarity on what additional scope is – with $ associated to items where possible. They aren’t arguing that additional scope and thus fees are due – they just want to be kept in the loop on where it is heading as close as possible…? (and as early as possible!).

[T&B being Mr and Mrs Welo]

Fixed fee to complete would be ideal. (emphasis added)

[43]   The highlighted advice from the Welos’ representative is telling, not only in respect of liability but also in respect of quantum.

[44]   One of the Welos’ principal concerns seems to have been a lack of detail from M&W in support of its costings.

[45]   In response to an email from Mr Muir providing some detail but ultimately concluding that it is not easy to put a figure on the additional charges, Triple Star in an email of 29 June 2017 said:

It all looks ok to me but still not sure if you have suggested a figure or not? Can only find reference to a 35k invoice (from April) and 220-290k additional fee indicated; both of which were tabled last time we discussed this in Aberdeen.

Tom and Beverlie asked for a firm/realistic figure to consider and there doesn’t seem to be one?

[46]   I note here that in the notice of opposition, the Welos put in issue the nature and extent of the services carried out by M&W for which it sought to charge on a time basis and the extent to which the services for which it was claiming were covered by M&W’s agreed scope, saying these issues could not be resolved at summary judgment.

[47]   Mr Sandelin noted the only timesheets produced by M&W do not support the claim for $200,000.

[48]I refer to the issue of quantum below.

The Welos’ main defence

[49] The primary defence of the Welos is based on Mr Muir’s reply to the Triple Star email of 29 June 2017 which is reproduced above at [45]. Mr Muir wrote as follows:

Not sure if i ever got back to you properly on this?

In essence we would prefer to discuss this in person, when T&B are over here in September as email is not a great way to have a dialogue, and we expect that the status of the project will be more clearly understood at that time and architectural scope largely complete.

However, for clarity, M&W and/or myself are NOT seeking any additional remuneration. We were however interested to bring this your attention with an interest to help manage the scope and level of our continuing involvement. This now seems to have resolved itself with time passed and progress made. (emphasis added)

[50]The lengthy email concluded with the following:

As we understand it the main areas requiring input at this time are limited to; Feature Lights, Hard Landscaping, and Joinery developed design. All of these packages have robust architectural briefing and progressing well locally with great client involvement so only limited architectural inputs required, which we are interested and happy to offer.

Hope this helps to close out this distraction, and helps focus attention and energy where it is needed.

Apologies for lengthy message – the summary is that;

1  /       response provided to close out query from ABZ meeting

2/       no additional fees being sought, just healthy to have identified concern relating to open ended services

3/       project progressing well thanks to focussed team effort, and perseverance

4/        keep in touch (emphasis added)

[51]   Mr Sandelin has focused on the reference to M&W not seeking any additional remuneration and in the closing summary “No additional fees being sought”.

[52]   Mr Sandelin submitted the interpretation advanced by Mr Muir that the above references mean no further fees would be raised for future work but fees for past work would need to be addressed, could not be justified on the plain and ordinary wording of the document against the background to what he said was a dispute over fees. He submitted it was a significant stretch to interpret the above email in the way Mr Muir now seeks to do so.

[53]   Mr Sandelin submitted that determining what this email meant was a matter for trial. However, he accepted the parties would have produced all email exchanges relevant to the meaning of the email, that is, the context in which it was sent. Further, he accepted what the parties believe the document meant is not relevant, it is what the Court considers it means in context that must be determined.

[54] The notice of opposition does not refer to the 13 July 2017 email (referred to at [36] above).

[55]   The context in which this email was  sent,  has  already been  touched  on.  Mr Muir raised on 31 May 2017, the additional as yet unresolved invoicing matters listed in the 10 February 2017 email. Mr Welo had responded in the 2 June 2017 email. On 9 June 2017, Triple Star confirmed the Welos were not arguing M&W had not carried out work outside the final fee and thus fees were due, there just needed to be clarity around quantum. The need for “a firm/realistic figure” was reiterated by Triple Star on behalf of the Welos on 29 June 2017.

[56]   In early June 2022, Mr Muir, in an email when he said it was not easy to put  a figure on the amount of additional time required, said:

At this stage, I would prefer to focus energy and attention on getting the job done, so suggest additional information is absorbed, and negotiation deferred until we can meet in NZ in September.

[57] The suggestion that further fees be discussed in person is repeated at the start of the 13 July 2017 email. Mr Muir saying he would prefer to discuss “this” in person is a reference to the Triple Star email of 29 June 2017 set out at [45] above.

[58]   Accordingly, immediately prior to the 13 July 2017 email, Mr Muir, on behalf of M&W, had over a period of months foreshadowed additional charges for variations and additional work over and above the fixed fee, that cost estimated at

$220,000 - $290,000. In addition, there was a $35,000 invoice outstanding from April 2016, together with the costs for the interior design and the farm manager’s cottage.

[59]   At the risk of labouring the point, on 9 June 2017, Triple Star on behalf of the Welos, communicated that the Welos did not dispute there had been additional work which would involve additional cost and then on 29 June 2017, Triple Star again reiterated the Welos had asked for a firm/realistic figure.

[60]   I am unable to find the 13 July 2017 email was a settlement or compromise of a dispute as to fees Mr Sandelin submitted existed is an arguable interpretation of that

email.   Mr Sandelin submits Mr Muir,  on behalf of M&W,  was aware there was     a dispute as to the additional services, which settled by the 13 July 2017 email. To support the  proposition  the  Welos  had  disputed  additional  fees  were  payable, Mr Sandelin refers to Mr Welo’s evidence of a dinner at the end of May 2017 where Mr Muir raised the issue of additional fees. Mr Welo says he rejected M&W’s claim for additional fees at that dinner saying a fixed fee had been agreed. However, whatever happened at the dinner was overtaken by the emails of the Welos’ representative of 9 June 2017 and 29 June 2017 set out above. The tenor of Mr Muir’s 13 July 2017 email as a whole was that as the project was nearing an end, M&W’s involvement would be significantly reduced and accordingly it was prepared to, in the interests of getting the project completed, continue its involvement with no costs from that point.

[61]   Mr Welo does not deny being  aware  at  the  time  of  the  9 June 2017  and 29 June 2017 emails sent by his representatives.

[62]   Nor is it an answer for Mr Welo to say he was not involved in subsequent communication between Triple Star and M&W in October 2017. Mr Muir emailed Triple Star on 5 October 2017, the subject line being “Tom and Beverlie Welo – Amended Invoice”. Mr Muir said:

Hi Mark

See attached earlier email

Suggest we sit on this, and let some dust settle a bit can’t let this be slipped under the carpet however

[63]Triple Star’s reply on 6 October 2023 was:

This seems quite reasonable; can I suggest waiting until project complete and then issuing an invoice once you know final amount you will be looking to claim? As per numerous discussions to date, is this something you want to speak to T&B direct about when you see them next? Could do with clear instructions on this so everyone knows exactly what the situation is …

[64]   Triple Star was not saying: ‘You cannot charge further – you settled your claim to invoice further on 13 July 2017.’ As Mr Caradus, counsel for the Welos submitted,

Mr Welo’s evidence is not that in July 2017 he believed he had reached some form of compromise or settlement with M&W over “disputed” invoices.

[65]   I do not consider it to be arguable that M&W agreed to compromise any claim it had for the work represented by the 3 December 2021 invoices in exchange for payment for the April 2017 NZ$35,000 invoice.

[66]   Firstly, there is no mention in the 13 July 2017 email of the NZ$35,000 invoice and no offer by Mr Muir to drop claims, then totalling well in excess of NZ$300,000, in exchange for a payment of NZ$35,000. Again, Mr Muir preferred to discuss those fees in person. The 13 July 2017 email is not capable of being read as an offer to settle a dispute and again, at the risk of labouring the point, the Welos’ representatives had confirmed that liability for the additional charges was not  disputed  but  details  as  to quantum had to be provided. Nor is there evidence of what might amount to acceptance of this asserted offer.

Delay in issuing the December 2021 invoice

[67]   M&W’s delay in issuing its invoices in part relate to there being a dispute between the Welos and Triple Star.

[68]On 19 June 2020, Mr Muir emailed the Welos saying as follows:

Great to hear that issues with TSML have been resolved at mediation, and Excellent that your Wyuna properties are under contract and tracking well to be sold when Eli is able to visit in person.

I thought this might be an appropriate time to pick up on unresolved correspondence from almost 3 years ago, relating to Hilton Residence Additional Services, Hilton Residence Interior Design, and Hillhead Cottage.

-     see below

I have assumed that you are still aware that these accounts are still outstanding, and that these have simply been deferred along with trips to NZ to be able to discuss in person, and then further deferred due to issues above.

Can you please let me know if, how and when you might like to progress this, with an interest to clarify a way forwards, and bring closure to these matters, and focus on an positive way forwards.

[69]   In response, in August 2020, there was a text exchange on Messenger between Mr Welo and Mr Muir where Mr Muir wrote: “I would love to wrap up loose ends on hillhead/hilton/interiors at that same [time], and once and for all.”

[70]   Mr Welo replied: “Speak over the weekend, OK?”. Mr Welo must have telephoned on 11 August 2020 as Mr Muir left a message: “Sorry to miss your call last night Was sound asleep”. Mr Welo replied: “Thanks, and we will sort you out”.

[71]   Accordingly, when Mr Muir raised residual issues with Hillhead/Hilton/Interiors, Mr Welo, rather than saying all such issues had been resolved/settled, said he would sort M&W out.

[72]Accordingly, in summary:

(1)The 13 July 2017 email does not record an offer to settle a dispute.

(2)The June 2017 emails record the Welos did not dispute liability for additional work – but wanted to confirm quantum.

(3)There was nothing that could be construed as Mr Welo “accepting” what he might have thought was a proposal made by Mr Muir in the 13 July 2023 email.

(4)It is inconsistent with commercial common-sense that Mr Muir would make such a proposal given the email acknowledgements he had received from Triple Star that liability for variations had been accepted

– M&W only had to prove quantum.

(5)I note in an M&W invoice raised 5 October 2017, there are a range of matters for which fees are recorded as: “To be agreed”. This invoice was signed by Mr Welo on 9 November 2017. Mr Welo was therefore on notice that M&W were working on the basis that there were further costs to be agreed. Neither Mr Welo nor Triple Star raised a protest with this invoice recording outstanding fees to be agreed when on

Mr Welo’s case, M&W from 13 July 2017 had no ability to invoice for the work listed as requiring a fee to be agreed.

Effect of rejection of the primary defence – conclusion on quantum

[73]   I am satisfied that M&W is entitled to judgment on liability in respect of its three invoices. However, I am equally satisfied that the quantum claim for each of those invoices is not a matter suitable for summary judgment.

[74]   In respect of the interior design invoice, this is because M&W has treated the budget as if it were a fixed fee when that is the evidence. In respect of the remaining invoices, the Welos, both directly and through Triple Star, had sought particulars/time records to support the claims, the need for which being made clear in the notice of opposition. The time records have not been produced and as Mr Sandelin submits, the only time records produced do not  support  the  $200,000  invoice  indeed  where the invoice at [35] refers to: “say” in relation to the amount of time is suggestive of some uncertainty in that regard.

[75]There is judgment for liability accordingly.

Costs

[76]Costs are reserved.

Associate Judge Lester

Solicitors:

Duncan Cotterill, Christchurch (for Plaintiffs) Lee Salmon Long, Auckland (for Defendants)

Copy to counsel:
M Sandelin, Barrister, Auckland (for Defendants)