Ready Mark Limited v Grant - [2012] NZCA 445

IN THE COURT OF APPEAL OF NEW ZEALAND

CA440/2011
[2012] NZCA 445

BETWEEN READY MARK LIMITED
Appellant

AND JILL GRANT
Respondent

Hearing: 19 September 2012

Court: Randerson, Stevens and Miller JJ

Counsel: T A Chubb and R P Kaur for Appellant
M W Vickerman for Respondent

Judgment: 28 September 2012 at 10 a.m.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Any issue as to costs in the High Court is to be resolved in that Court.

CCosts in this Court are reserved. Counsel are to file memoranda in accordance with [39] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

In the High Court the appellant company (Ready Mark) sought summary judgment against the respondent, Ms Grant, for $94,466.55 for renovation work carried out on a property she owned. Ready Mark is a company controlled by Ms Grant’s former husband. The work was carried out shortly before the couple separated in 2005.
Ms Grant’s defence to Ready Mark’s claim was that it had already been determined as part of the valuation of relationship property in proceedings between herself and Mr Grant in the Family Court.[1] It followed that the doctrine of res judicata applied to prevent Ready Mark (as Mr Grant’s privy) from pursuing the summary judgment claim.[2]
[1] J G v JB G FC North Shore, FAM-2002-044-591, 13 July 2010.
[2]Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 37; and Contact Energy Ltd v Attorney-General [2009] NZCA 351 at [71].
Associate Judge Christiansen accepted Ms Grant’s defence was arguable and dismissed Ready Mark’s application for summary judgment.[3] On Ms Grant’s application, he also struck out Ready Mark’s claim. Ready Mark responded by bringing this appeal against the refusal of summary judgment and by applying to review the strike-out decision. Venning J granted Ready Mark’s application for review and reinstated its claim against Ms Grant.[4] An application by Ms Grant for leave to appeal to this Court against Venning J’s decision was declined by Courtney J.[5] No steps have been taken to seek leave from this Court to appeal Venning J’s decision and we are concerned solely with Ready Mark’s appeal against the refusal of summary judgment.
[3] Ready Mark Ltd v Grant HC Auckland CIV-2010-404-8264, 17 June 2011.
[4] Ready Mark Ltd v Grant HC Auckland CIV-2010-404-8264, 18 November 2011.
[5]Ready Mark Ltd v Grant [2012] NZHC 970.
It is now common ground that if the renovation work issue was determined in the Family Court proceedings, then Ms Grant has a complete defence to Ready Mark’s claim. The sole issue on appeal is whether that is so.

Factual background

Mr and Ms Grant married in November 1987 and separated around June 2005. They owned a substantial home which was sold and the net sale proceeds divided equally between them. An interest in a company was also realised and divided equally.
Apart from an interest in an entity known as AWB Sole Trader and a yacht, all…

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 Ready Mark Limited v Grant 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: [2012] NZCA 445
Decision Date: 28 September 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Ready Mark Limited, an entity controlled by Jill Grant's former husband, sought to appeal the refusal of summary judgment against Jill Grant for the sum of $94,466.55, which represented the cost of renovation work performed on a property owned by Grant. The High Court had dismissed Ready Mark's application for summary judgment, and subsequently struck out their claim, finding that the renovation costs had already been determined as part of the valuation of relationship property in the Family Court proceedings between Grant and her former husband. The appeal raised the issue of whether the Family Court's determination precluded Ready Mark from pursuing the claim through the doctrine of res judicata.

The Court of Appeal held that the Family Court had effectively determined that Grant was not liable for the renovation debt. The Court found that the chartered accountant's valuation, which formed the basis of the Family Court's decision, proceeded on the basis that the renovation work-in-progress was "unable to be realised in cash." This conclusion meant that Grant was not liable for the debt, and Ready Mark, as Mr. Grant's privy, was estopped from pursuing the claim by the doctrine of res judicata. The Court of Appeal thus dismissed the appeal and held that Grant had a complete defence to Ready Mark's claim. The Court reserved the issue of costs in the Court of Appeal and instructed the parties to file memoranda on the matter within specified timeframes. The proceeding in the High Court remains extant, but in light of the Court of Appeal's finding, it could not succeed. Any issue as to costs in the High Court is to be resolved in that Court.

Orders