Melbourne Ltd v Bartlett Concrete Placing Ltd - [2022] NZHC 1786

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000140

[2022] NZHC 1786

UNDER Section 290 Companies Act 1993 and Part 19 of the High Court Rules 2016

IN THE MATTER

of an application to set aside a statutory demand

BETWEEN

MELBOURNE LIMITED

Applicant

AND

BARTLETT CONCRETE PLACING LIMITED

Respondent

Hearing: 13 July 2022

Appearances:

K R Narayan for Applicant

G K Holm-Hansen for Respondent

Judgment:

26 July 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 July 2022 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MELBOURNE LTD v BARTLETT CONCRETE PLACING LTD [2022] NZHC 1786

[1] Melbourne Ltd (Melbourne) engaged Bartlett Concrete Placing Ltd (Bartlett) to perform civil construction work. In the course of the work, Bartlett sent by email to Melbourne payment claims under the Construction Contracts Act 2002. The payment claims were not fully paid. Bartlett says Melbourne did not issue a valid payment schedule in respect to either payment claim.

[2] Bartlett has issued a statutory demand to recover the balance of the payment claims as a debt due. Melbourne applies to set aside the statutory demand under s 290(4) of the Companies Act 1993. Melbourne says it is solvent and there is a genuine dispute as to whether the debt is due and owing. Bartlett opposes the application to set aside the statutory demand.

Background

[3] Melbourne is an established construction company. Its website indicates it was established in 1988 and has 32 years’ experience within the construction industry. Stephen Cohen is the sole director of Melbourne.

[4] Melbourne was engaged by a third party to carry out civil work at a property in Byron Street, Christchurch. Melbourne, in turn, engaged Bartlett to carry out some of the work to an exterior yard at the property.

[5] Bartlett provided a quotation for the work dated 29 October 2020, which included terms and conditions of trade. The quotation was accepted by Melbourne. Relevantly, Bartlett’s terms and conditions included:

(a)Bartlett could make monthly progress payment claims under the Construction Contracts Act 2002.

(b)Melbourne was to make payment of progress payment claims in accordance with ss 16 and 17 of the Construction Contracts Act and would make payment on the due date for payment as defined in s 18 of that Act.

(c)Interest would accrue on amounts overdue at the rate of 2.5 percent per month and would be calculated on a day by day basis until payment in full was made.

(d)All costs incurred by Bartlett as a result of a default by Melbourne, including debt collection costs and legal costs as between solicitor and client, were payable by Melbourne.

[6] In the course of the work, Bartlett issued several payment claims to Melbourne. Two of those payment claims are the subject of this proceeding. The first of those payment claims is dated 31 October 2021 for $89,768.43 (issued 9 November 2021). The second is dated…

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.

Keep reading for free

Create a free CaseChat account to read Melbourne Ltd v Bartlett Concrete Placing Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 1786
Decision Date: 26 July 2022

CaseChat Overview and Summary

Melbourne Ltd applied to set aside a statutory demand issued by Bartlett Concrete Placing Ltd. The basis for the statutory demand was two payment claims issued under the Construction Contracts Act 2002. Melbourne contended the statutory demand should be set aside on the basis it was solvent, there was a genuine dispute as to whether the debt was due and owing, and it had a counterclaim for defective and incomplete work. Bartlett opposed the application.

The court found that the payment claims were validly served, Melbourne did not serve a valid payment schedule, and Melbourne was not solvent. Further, the court found that Melbourne's dispute as to the quality of the work could not assist it because of s 79 of the Construction Contracts Act 2002. The court declined to exercise its discretion to set aside the statutory demand.

Accordingly, Melbourne's application to set aside the statutory demand was dismissed. Melbourne was ordered to pay the amount of the statutory demand within three working days of the date of the judgment, failing which Bartlett may apply to liquidate Melbourne. Bartlett was also awarded its costs.

Orders