Tugaga v Westend Painters Limited - [2017] NZHC 2130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2294

CIV-2016-404-3008 [2017] NZHC 2130

BETWEEN
FIONA TUGAGA

Appellant

AND

WESTEND PAINTERS LIMITED First Respondent

LEE TERRENCE DONALD Second Respondent

Hearing: 16 and 17 May 2017

Counsel:

DA Cowan and CJC McLean for appellant
SJ Neville for first and second respondents

Judgment:

1 September 2017

JUDGMENT OF FITZGERALD J [Appeal against decision of District Court]

This judgment was delivered by me on 1 September 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: DA Cowan, Auckland (D Cowan) Ellis Gould, Auckland

Tugaga v Westend Painters Limited [2017] NZHC 2130 [1 September 2017]

Introduction

[1] The dispute between the appellant (“Ms Tugaga”) and the respondents (collectively referred to “Westend”) centres on a repaint of Ms Tugaga’s residential property in Titirangi, Auckland (the “Property”). The Property is a two-storey wooden villa.

[2] In 2013, Ms Tugaga contracted Westend to carry out a full repaint of the Property.1 All of the day-to-day communications in relation to the repaint, however, were between Ms Sharp and Westend. Ultimately, Ms Sharp gave evidence that, in her view, there were a number of workmanship issues with the painting work. Ms Tugaga also alleged that, in or about March 2014, Westend repudiated the painting contract by “walking off the job” and refusing to complete the works.

[3] Westend said there were no workmanship issues. And Westend said that in any event, the work was not complete, such that it was premature to consider whether there were workmanship issues or defects that could not be remedied prior to completion. It also disputed that it walked off the job, saying it was always willing to return and complete the project. Rather than it repudiating the contract, Westend says Ms Tugaga herself wrongfully cancelled the painting contract by, at the latest, commencing the underlying proceedings in the District Court.

[4] Judge Harrison heard the competing claims over a five-day hearing. He concluded that Ms Tugaga had wrongfully cancelled the contract and therefore declined to grant the relief sought on her contractual cause of action.2 The Judge also made various findings on other (related) causes of action advanced on Ms Tugaga’s behalf.3 Judge Harrison also entered judgment against Ms Tugaga on a
counterclaim by Westend for unpaid scaffolding costs.

1      There was some issue at trial as to who Westend’s contractual counterparty was. Ms Shirley- Ann Sharp, who is Ms Tugaga’s sister-in-law, had actually signed the contract. It was ultimately agreed at trial that Ms Sharp had entered into the contract on behalf of Ms Tugaga, as owner of the Property. No issue was taken in relation to this on appeal. I accordingly proceed on the basis that the contractual parties were Ms Tugaga and Westend.
2      Tugaga v Westend Painters Ltd [2016] NZDC 19921.
3      Claims in negligence, under the Fair Trading Act 1986 and the Consumer Guarantees Act 2003,
as well as claims against Westend’s director personally.

[5] Ms Tugaga now appeals from…

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: [2017] NZHC 2130
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tugaga v Westend Painters Limited was heard. The appellant, Fiona Tugaga, appealed against the decision of the District Court, which dismissed her claims for breach of contract, negligence, and under the Fair Trading Act. The respondents, Westend Painters Limited and Lee Terrence Donald, cross-appealed on the issue of interest on the unpaid scaffolding invoice. The central issue in the case was whether there were any grounds for the appellant to lawfully cancel the painting contract. The High Court found that there were no grounds for the appellant to cancel the contract, and her cancellation was unlawful. The Court held that the painting work completed by Westend was of an acceptable standard, and there was no repudiation of the contract by Westend. Therefore, the appeal was dismissed, and the District Court's decision was upheld. The High Court also found that the District Court's decision on the counterclaim for unpaid scaffolding costs was correct, except for the commission charge, which was not applicable. Interest was awarded on the reduced sum, and judgment was entered in favour of the respondents in the sum of $7,979.89 (including interest).

Orders