The Roofing Specialists Ltd v BLM Engineering Company Ltd - [2012] NZHC 1279

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-359 [2012] NZHC 1279

IN THE MATTER OF an appeal against the decision of the
District Court at Hamilton

BETWEEN THE ROOFING SPECIALISTS LTD Appellant

ANDBLM ENGINEERING COMPANY LTD Respondent

Hearing: 7 June 2012

Counsel: J Niemand for Appellant
TM Braun and K Lomas for Respondent

Judgment: 8 June 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 June 2012 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
Niemand Peebles Hoult (Hamilton) for Appellant
Harkness Henry (Hamilton) for Respondent

THE ROOFING SPECIALISTS LTD V BLM ENGINEERING COMPANY LTD HC HAM CIV-2012-419-359 [8 June 2012]

Introduction

[1] In a reserved judgment delivered on 1 March 2012 in the District Court at Hamilton, Judge RG Marshall found against the appellant in its claim against the respondent for $42,184.09.

[2] By notice of appeal dated 27 March 2012, the appellant appeals against the judgment of the District Court Judge. One of the grounds of appeal is that the District Court Judge erred in finding that a Mr Butterfield did not have authority to bind the respondent to a contract with the appellant. By notice of application dated
19 April 2012, the appellant seeks leave to adduce on the appeal the evidence contained in an affidavit of Mr Butterfield filed with the application.

[3] My task is to decide whether the appellant should be permitted to adduce on the appeal the evidence of Mr Butterfield as contained in the affidavit.

Context

[4] The case before the District Court Judge concerned a claim by the appellant that it had a contract with the respondent by which the appellant provided roofing services for a building owned by a company related to the respondent. The respondent was to lease the building from the related company.

[5] The appellant dealt initially with the head contractor for the building project. The head contractor accepted the appellant’s tender for the roofing services. A contract between the appellant and the head contractor was concluded. However, the company from which the appellant was to obtain the materials required for the performance of the contract did not trust the head contractor. There was a meeting between representatives of the appellant, the materials supplier and the head contractor. The appellant’s representative was put in touch by telephone with Mr Bill Butterfield. Mr Butterfield was employed by the head contractor. At a subsequent meeting with the appellant’s representative, Mr Butterfield gave the appellant’s representative a purchase order in the name of the respondent confirming

the appellant’s tender price. The purchase order directed all correspondence to go to

the head contractor.

[6] It was uncontested that Mr Butterfield was in lawful possession of the purchase order book from which the purchase order came. A Mr Elliott, who was both a director of the respondent and of the respondent’s related company, gave evidence that he gave the purchase order book to Mr Butterfield with very clear instructions that it…

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.

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Details

Case: [2012] NZHC 1279
Decision Date: 8 June 2012

CaseChat Overview and Summary

The Roofing Specialists Ltd appealed against a judgment of the District Court which found against the appellant in its claim against the respondent for $42,184.09. The appellant sought leave to adduce evidence on the appeal in the form of an affidavit from Mr Butterfield, who had been employed by the head contractor. The appellant submitted that the proposed evidence would have turned the case in its favour. The respondent submitted that the proposed evidence did not cross the threshold for admittance. The court found that there was nothing exceptional about the circumstances in which the evidence was sought to be adduced. The proposed evidence as set out in Mr Butterfield’s affidavit was not credible or cogent. The court dismissed the application for leave to adduce evidence on appeal.

The court considered the principles of the law relating to the admission of further evidence on appeal. The court noted that leave to adduce further evidence is exercised sparingly and only if there are special reasons. The court found that the proposed evidence did not meet the special reasons test in Rule 20.16 of the High Court Rules. The court found that the evidence went nowhere near to exposing a situation which the interests of justice would require to have heard in a further trial. The court dismissed the application for leave to adduce evidence on appeal.

Orders