IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-483
[2020] NZHC 2471
IN THE MATTER
of an appeal under s 124 of the District Court Act 2016
BETWEEN
PAUL DESMOND MCGRUDDY
Appellant
AND
SPOTLESS FACILITY SERVICES (NZ) LTD
Respondent
Hearing:
16 July 2020
Counsel:
A C Beck for Appellant
A L Harlowe for Respondent
Judgment:
25 September 2020
JUDGMENT OF THOMAS J
This judgment was delivered by me
on 25 September 2020 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Gawith Burridge, Masterton for Appellant
Couch Harlowe Kovacevich, Auckland for Respondent
MCGRUDDY v SPOTLESS FACILITY SERVICES (NZ) LTD [2020] NZHC 2471 [25 September 2020]
Table of contents
Appeal[2]
The approach on appeal [4]
Background [5]
Did the Judge err in his finding of waiver by estoppel? [20]
The pleadings [22] The District Court decision [27]
Submissions on appeal [32]
The law [38]
Assessment [45]
The away allowance [65]
Termination [68]
District Court [70]
Assessment [71]
Damages [75]
Promissory estoppel [89]
General damages [95]
Result [101]
Costs [102]
[1] Paul McGruddy carried out painting work for Spotless Facility Services (NZ) Ltd (Spotless) between October 2010 and October 2015. There was first an oral contract and then a written contract. Both contracts allowed Mr McGruddy to charge for mileage costs. Mr McGruddy carried out 248 jobs for Spotless but charged for mileage 15 times only, in respect of work carried out by his brother. After Spotless terminated his contract, Mr McGruddy issued retrospective mileage claims dating back to 2010. In the District Court, Mr McGruddy failed in his action to enforce payment of his claim, the Judge finding that there was a waiver by estoppel.1 Mr McGruddy appeals against this and other findings.
Appeal
[2] Mr McGruddy contends that the District Court was wrong in fact and law, and in particular:
(a)finding there was a “waiver by estoppel” preventing Mr McGruddy from claiming mileage expenses because:
(i)the argument of waiver by estoppel was not pleaded; and
(ii)the written contract between the parties which commenced on 16 October 2013 (the Contract) precluded any modification other than in writing;
(b)finding the Contract came to an end because there was no further work available for Mr McGruddy;
(c)holding that Mr McGruddy was not entitled to written notice 30 days prior to termination or compensation for failure to give such notice;
(d)holding that Mr McGruddy was not entitled to loss of earnings as a result of waiting for jobs that had been promised to him (promissory estoppel); and
(e)holding that general damages are not recoverable for a breach of a commercial contract.
[3] Mr McGruddy seeks orders quashing the whole of the District Court judgment and instead granting judgment in his favour.
The approach on appeal
[4] In considering the appeal, I apply the principles articulated by the Supreme Court in Austin, Nichols &…
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
AGLC
McGruddy v Spotless Facility Services (NZ) Ltd [2020] NZHC 2471
Case
[2020] NZHC 2471
Decision Date
CaseChat Overview and Summary
Paul McGruddy carried out painting work for Spotless Facility Services (NZ) Ltd between 2010 and 2015. He claimed that Spotless breached their contract by not paying him mileage expenses and by not providing written notice of termination. He also claimed that Spotless breached promises it made to him. The District Court found against Mr McGruddy and he appealed. The appeal was largely dismissed but there was a finding of a breach of contract in relation to the written notice of termination. The District Court had found that Mr McGruddy waived his right to charge for mileage expenses by agreeing with Spotless that he would not charge for mileage in exchange for work. The High Court found this to be correct. There was no prejudice to Mr McGruddy because he was aware that the waiver was being alleged. The High Court also found that Mr McGruddy was not entitled to damages for the breach of the notice of termination clause because there was no guarantee of work under the contract and Mr McGruddy would have been in the same position regardless. The High Court also found that there was no entitlement to general damages for breach of contract. Costs were awarded to Spotless.