IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-301
[2019] NZHC 2881
BETWEEN PERYER CONSTRUCTION WGTN LIMITED
Plaintiff/ApplicantAND
ELIZABETH MARY CATHIE
Defendant/Respondent
Hearing: 23 October 2019 Appearances:
F B Collins and D C Calder for plaintiff/applicant P S J Withnall for defendant/respondent
Judgment:
6 November 2019
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
TABLE OF CONTENTS
Introduction [1]
Background to proceeding [2]
Protest to jurisdiction – relevant principles [10]
Dispute resolution clause [17]
Application to set aside Ms Cathie’s protest to jurisdiction [20]
Result [43]
PERYER CONSTRUCTION WGTN LIMITED v CATHIE [2019] NZHC 2881 [6 November 2019]
Introduction
[1] Before the Court for determination is the plaintiff’s interlocutory application dated 24 May 2019 for an order setting aside the defendant’s appearance under protest to jurisdiction dated 18 April 2019.
Background to proceeding
[2] The substantive proceeding was commenced by notice of proceeding and statement of claim on 30 April 2018. On commencement the plaintiff sought summary judgment by interlocutory application of the same date. This was opposed by the defendant in her notice of opposition dated 27 July 2018.
[3] In October 2016, the parties entered into a contract pursuant to which Ms Cathie engaged the plaintiff, Peryer Construction Wgtn Ltd (Peryer), to carry out certain work on her home. Essentially, this involved a re-clad.
[4] In April 2017, after Peryer notified Ms Cathie that it had completed the contract work, a dispute arose between the parties. In October 2017, Peryer sought to refer this dispute for expert determination, which was the first-tier dispute resolution mechanism provided for in the contract. This gave rise to differences between the parties and a considerable amount of correspondence between them, their advisers and the expert as to jurisdictional issues and the like. Ultimately, the expert determined a very narrow preliminary issue. Peryer commenced this proceeding seeking orders enabling the expert to determine the balance of the dispute.
[5] In his judgment declining summary judgment, Associate Judge Osborne outlined the background in detail. Both parties accept the Judge’s description as accurate. Accordingly, I replicate it here:
[7] The building contract between the parties is in the form of contract published by Standards New Zealand for Building and Civil Engineering Construction (where no person is appointed to act as engineer to the contract) (NZS3915:2005), with special conditions of contract, specifications and drawings incorporated.
[8] The contract stated that cedar weatherboards were to be replaced with new cedar weatherboards after Peryer had installed a rigid air barrier and cavity system.
[9] In April 2017, a dispute arose between the parties as to whether Peryer had achieved practical completion. “Practical completion” is defined under General Condition (GC) 10.4 of the contract by reference to when works are complete except for minor omissions and minor defects, subject to some qualifications.
[10] The contract contains in GC 13 provisions for the resolution of disputes.
[11] On 5 October 2017, Peryer gave notice in writing to Ms Cathie (pursuant to GC…
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