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Mount Grey Downs Ltd v Pinot Properties Ltd

Mount Grey Downs Ltd v Pinot Properties Ltd

Case [2018] NZHC 3094 27 November 2018

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000842

[2018] NZHC 3094

BETWEEN
MOUNT GREY DOWNS LIMITED

Plaintiff

AND

PINOT PROPERTIES LIMITED

First Defendant

AND

STEPHEN CHARLES COHEN

Second Defendant

Hearing: 5 November 2018

Appearances:

R W Maze for Plaintiff/Applicant

A D Marsh for Defendants/Respondents

Judgment:

27 November 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

(plaintiff’s summary judgment application)

Background – the contract

[1] The first defendant, Pinot Properties Ltd (Pinot), owns a property at 205 Manchester Street, Christchurch which was severely affected by the Canterbury Earthquake Sequence. Pinot was required by the Canterbury Earthquake Recovery Authority (CERA) to make the building safe.

[2] In September 2011, Pinot entered into a contract with Mount Grey Downs Ltd (Mount Grey) in relation to the work required on the buildings (the contract). The contract provided for payment as follows:

MOUNT GREY DOWNS LIMITED v PINOT PROPERTIES LIMITED [2018] NZHC 3094 [27 November 2018]

PAYMENT

All GST invoices will be forwarded for payment to the address upon this agreement on or before the 26^th of the month. All invoices will be clearly set out to show individual trade’s hours, plant and equipment hours and sub contractors, material costs.

Information as day/time-sheets, copies of Sub contractors and materials will support all invoices submitted for payment.

The supporting documents

Introduction

[3] The defendants, as a separate ground of defence, assessed that Mount Grey failed to comply with its duties under the contract’s audit provision (as set out above at [2]). It was common ground between counsel that the audit provision imposed a date upon Mount Grey which was in the nature of an auditing arrangement.

[4] Pinot’s director, Stephen Cohen, (the second defendant) acknowledged in signing the contract on behalf of Pinot that he also personally guaranteed any debt outstanding to Mount Grey.

[5] Mount Grey subsequently undertook work on the property. It issued invoices to Pinot for that work (identified by Mount Grey as Job No. 4562) up to 31 July 2012. It asserts that it was entitled to payment for invoiced sums totalling $474,009.18 (including GST). Mount Grey acknowledges that Pinot has paid $112,782.83 (including GST) on account of its debt. Pinot made payment in March and May 2012 of $111,282.83 together with a further payment of $1,500 in April 2013. It is common ground that Pinot has made no payment since then.

[6]The affidavit evidence thereafter contains a difference between the deponents

– not able to be resolved in this summary judgment context – as to whether Pinot has paid any sum beyond the $112,782.83 figure on account of the 205 Manchester Street contract. For Mount Grey, Mr Chronican exhibited a 10 May 2012 email he sent to Mr Cohen. It refers to payments of $55,000 having been paid by Vero (Pinot’s insurer) on 205 Manchester Street. Mr Chronican does not in his affidavit state that there is an error in the email. However, the accountant who undertakes work for Mount Grey, Claire…

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 Mount Grey Downs Ltd v Pinot Properties Ltd

Details

AGLC: Mount Grey Downs Ltd v Pinot Properties Ltd [2018] NZHC 3094
Case: [2018] NZHC 3094
Decision Date: 27 November 2018

CaseChat Overview and Summary

Mount Grey Downs Limited sought summary judgment against Pinot Properties Limited and Stephen Charles Cohen in the High Court of New Zealand. The case arose from a contract for work on a property damaged by the Canterbury Earthquake Sequence. Mount Grey Downs claimed payment of $474,009.18, while Pinot Properties argued it had made payments of $112,782.83 and had arguable defences to the remaining amount. The court assessed whether Pinot had any defences to Mount Grey's claim, considering issues such as an alleged pre-contractual estimate and disputes over whether the contracted work was completed. The court found that Pinot had arguable defences due to the alleged estimate, which was not documented in the contract, and the possibility of a reasonable margin between the estimate and the total payment. The court also found that Mount Grey had not provided sufficient documentation to support its invoices, potentially breaching the contract's audit provision. Consequently, the court dismissed Mount Grey's summary judgment application and ordered the defendants to file their statements of defence within ten working days. The costs and disbursements of the summary judgment application were reserved.

Orders