Masonry Design Solutions Limited v Murakami - [2012] NZHC 331

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5284 [2012] NZHC 331

BETWEEN MASONRY DESIGN SOLUTIONS LIMITED
Plaintiff

ANDHIROTO MURAKAMI AND FM TRUSTEES 405 LIMITED Defendants

Hearing: 2 March 2012

Appearances: Mr G Jenkin for Plaintiff
S Khan and J Riddle for Defendants

Judgment: 2 March 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on
02.03.12 at 5 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:
G C Jenkin, 3 Princess Street, Auckland – gcjenkin@xtra.co.nz
Fortune Manning, P O Box 4138, Auckland – cathy.fisher@fortunemanning.co.nz

MASONRY DESIGN SOLUTIONS LIMITED V MURAKAMI AND Anor HC AK CIV-2011-404-5284 [2
March 2012]

[1] The plaintiff claims that it has not been paid for amounts which it ought to have been paid for concept design services which are provided to the defendants. The defendants are the trustees of the Kiwi Queen NZ Trust.

[2] Mr M Wilson, who is the principal of the plaintiff company, said that he attended a meeting in Tokyo in July 2009. That meeting was concerned with the plaintiff providing design concepts services for the construction of a very large residential property to be constructed in Coatesville, Auckland for the Trust. The meeting was attended by one of the trustees, the first named defendant, Mr Murakami, and a person who seems to have been the settlor of the trust, Mr Seki. Mr Seki provided a design brief at this meeting

[3] Mr Wilson says that at the Tokyo meeting it was agreed that the plaintiff would prepare three separate design concepts for the residence. The plaintiff would be paid the equivalent of 2% of the construction cost of whatever design was ultimately adopted. No written agreement was signed to this effect. The defendants deny that an agreement of the kind alleged by the plaintiff was actually entered into.

[4] The plaintiff seeks to have this conflict of who is telling the truth resolved by a consideration of the fact that Mr Wilson says he presented a draft Client Services Agreement at the meeting in Tokyo. While that agreement was not actually signed, it contained reference to a 2% fee payable, broadly, in the circumstances which Mr Wilson said the parties discussed at the Tokyo meeting. That is Mr Wilson’s position is that the fact that he produced this agreement at the Tokyo meeting reinforces his account of matters because it is consistent with what he says occurred.

[5] Mr Wilson says that the basis upon which matters were left following the Tokyo meeting was that he left a copy of the client services agreement with Mr Murikami and Mr Seki so that it could be translated into Japanese. Thereafter Mr Murikami would bring it back to New Zealand where it would be signed by Mr Murikami and New Zealand trustee, Mr Fortune.

[6] A further meeting was held with Mr Seki at Whangaparaoa in October 2009 at which Mr Wilson presented his estimate of the total construction costs of…

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: [2012] NZHC 331
Decision Date: 2 March 2012

CaseChat Overview and Summary

Masonry Design Solutions Limited, the plaintiff, brought an action against Hiroto Murakami and FM Trustees 405 Limited, the defendants, seeking payment for concept design services provided for a residential property in Coatesville, Auckland. The defendants, as trustees of the Kiwi Queen NZ Trust, dispute the claim, denying that they agreed to pay a 2% fee of the construction cost for the design concepts. The primary dispute revolves around whether an agreement was reached during a meeting in Tokyo in July 2009, where the plaintiff presented a draft Client Services Agreement, and if so, what the terms of that agreement were.

The legal issues before the court were whether the defendants had a defence to the plaintiff's claim and if the case should proceed to trial or be dismissed on summary judgment. The plaintiff argued that the presentation of the draft agreement at the Tokyo meeting was a strong indicator that an agreement was reached, while the defendants maintained that no such agreement was made and that they only agreed to pay for three design concepts and a scale model. The court had to determine if there was sufficient evidence to resolve these factual disputes at the summary judgment stage or if they required a trial.

In delivering the judgment, Associate Judge Doogue noted that while the court could take a robust approach to summary judgment applications, it was only in exceptional cases that factual disputes could be resolved at this stage. The judge found that the discrepancies in the accounts given by the parties and the lack of a signed agreement made it inappropriate to resolve the dispute at summary judgment. The judge emphasised that it was only after a trial that a court could make findings of fact with the necessary level of confidence. Therefore, the application for summary judgment was dismissed, and directions were given for the case to proceed to trial. The judge ordered that the evidence at trial would be limited to the affidavits filed, with an exception allowing the defendants to file an additional affidavit from a personal assistant of Mr Seki, within 21 days. The trial was set for two days in May 2012, and the parties were directed to provide discovery of relevant contracts and to confer on the date for filing synopses and the preparation of the trial bundle.

Orders