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McKenzie v Protective Canopies Ltd

McKenzie v Protective Canopies Ltd

Case [2017] NZHC 1623 14 July 2017

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2015-470-71 [2017] NZHC 1623

BETWEEN
GRAEME ROY MCKENZIE, KAREN

ISABEL MCKENZIE AND BRG TRUSTEES LTD AS TRUSTEES OF THE PEPATREE TRUST

Plaintiff

AND

PROTECTIVE CANOPIES LTD Defendant

Hearing:
22 May 2017

(Additional submissions: 30 June 2017)

Counsel:

D M Fraundorfer and J S Braithwaite for Plaintiff
No appearance by or on behalf of Defendant

Judgment:

14 July 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 July 2017 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Holland Beckett (Tauranga) for Plaintiff

MCKENZIE v PROTECTIVE CANOPIES LTD [2017] NZHC 1623 [14 July 2017]

Introduction

[1] The plaintiff (“Pepatree”) claims $718,2621 from the defendant (“PCL”).

[2] Pepatree grows kiwifruit. In 2013, PCL agreed to design and build three

canopies to protect Pepatree’s kiwifruit. The canopies were constructed but, in April

2014, they were damaged extensively by high winds. They were repaired with assistance from PCL. In October 2014, the canopies were again damaged extensively by high winds. This time Pepatree repaired about half of the canopies.

[3] Pepatree’s case is that it contracted with PCL in reliance on assurances from PCL that the canopies would withstand winds that they would likely encounter (in the 80 to 100 km/h range). It alleges that PCL’s design was flawed and that, as constructed, the canopies did not withstand winds of this strength.

[4] By joint memorandum of counsel, dated 9 May 2017, I was advised that PCL would not take part in the trial.2 I agreed to proceed on a formal proof basis. That means Pepatree has the onus of establishing, to my satisfaction, each cause of action relied on and to provide sufficient information to enable me to calculate and fix damages.3

Pepatree’s evidence

[5] The evidence for Pepatree is contained in the following affidavits:

(a) Affidavit of Graeme Roy McKenzie sworn 15 May 2017.

Mr McKenzie is a trustee of Pepatree. He deposes to the events preceding the agreement with PCL, the construction of the canopies, the two wind events which damaged them, and subsequent dealings
with PCL which led to the issuing of Pepatree’s claim.

1      In the amended statement of claim, the amount claimed is $623,332 but at trial I granted leave for this sum to be increased to $718,262 so as to include GST. The basis for the calculation is set out in a letter dated 18 May 2017 from chartered accountants, Gerry Rea Partners Limited, to Holland Beckett.
2      The trial was scheduled to commence on 22 May 2017, with five days allocated.
3      High Court Rules, r 15.9(4).

(b) Supplementary affidavit of Mr McKenzie sworn 28 June 2017.

Mr McKenzie provided further information as to the layout of the

shelterbelt that surrounds Pepatree’s kiwifruit orchard.

(c) Affidavit of Donald Richardson sworn 11 May 2017. Mr Richardson is a chartered professional engineer specialising in civil and structural engineering. Mr Richardson prepared a report on the canopies and provides his opinion on…

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.

Continue reading McKenzie v Protective Canopies Ltd

Details

AGLC: McKenzie v Protective Canopies Ltd [2017] NZHC 1623
Case: [2017] NZHC 1623
Decision Date: 14 July 2017

CaseChat Overview and Summary

The case of McKenzie v Protective Canopies Ltd, heard in the High Court of New Zealand, involved a dispute between the plaintiffs, Pepatree, and the defendant, PCL. Pepatree, a kiwifruit grower, sought $718,262 from PCL for the damage and consequential losses incurred due to the failure of protective canopies designed and constructed by PCL. The primary issues in the case were whether the exclusion clauses in the agreement between the parties limited or negated PCL's liability and whether the evidence established liability for the damage to the canopies and consequential losses. The court found that the exclusion clauses did not apply to the pleaded causes of action, as the liability arose from pre-contractual representations regarding the canopies' ability to withstand local wind conditions, rather than defects in the materials supplied. The court also concluded that PCL's pre-contractual statements were misleading and deceptive, breaching the Fair Trading Act 1986. Consequently, the court ruled in favour of Pepatree, awarding damages of $718,262, along with costs on a 2B basis.

Orders