Peryer Construction WGTN Limited v Cathie - [2019] NZHC 2881

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/Applicant

AND

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…

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 Peryer Construction WGTN Limited v Cathie 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: [2019] NZHC 2881
Decision Date: 6 November 2019

CaseChat Overview and Summary

The plaintiff, Peryer Construction WGTN Limited, brought proceedings against the defendant, Elizabeth Mary Cathie, seeking damages for breach of a contract for the re-cladding of her property. The proceedings were commenced on 30 April 2018 and, on the same day, Peryer sought summary judgment. This was opposed by Cathie. Associate Judge Osborne declined summary judgment, and Peryer subsequently amended its statement of claim to seek damages for breach of contract. Cathie protested the Court's jurisdiction on the basis that the parties had agreed to resolve their disputes by expert determination, mediation and arbitration. Peryer applied to the Court to set aside Cathie's protest to jurisdiction. The Court held that the contractual submission to dispute resolution was binding on the parties and ordered that the proceeding be stayed pending the reference of any residual dispute between the parties to resolution pursuant to clause 13 of their contract. The Court granted leave to both parties to return to the Court to seek assistance in ensuring that the dispute was dealt with appropriately and in a timely way. The Court reserved costs.

Orders