TBS and BC had a construction contract to undertake remediation for weathertightness issues. The BC later refused to pay the balance of the agreed price on the basis that certain areas of work remained defective.
TBS applied for summary judgment against the BC for payment of the balance of the debt and for a stay of the counterclaim by BC for defective works, on the basis it be pursued separately through arbitration.
BC opposed summary judgment, contending the Court should exercise its residual discretion to decline summary judgment to avoid oppression or injustice to the BC, or a stay of enforcement pending resolution of the BC’s counterclaim, as enforcement would result in a substantial miscarriage of justice.
High Court found the BC had no arguable defence to TBS’s application for summary judgment because the amount claimed was a scheduled amount and therefore a debt due pursuant to s 24 of the CCA. Nevertheless, the Court decided to order a stay of execution of the summary judgment because the BC had a credible counterclaim that the remediation work was defective and there was a real risk that the BC would be unable to pursue the counterclaim due to a lack of funds; or if it was able; it would be fruitless because TBS had already sold its business and was now a shell company. Arbitration only available for one month after final payment schedule issued. BC could not rely protections for consumers under s 11 Arbitration Act 1996 as BC was not a natural person.
Application to sustain caveat – relying on reservation of title clause found in contract
Application by DCL to sustain a caveat. DCL had obtained adjudication under Construction Contracts Act 2002 against DM for failure to pay for earthworks in a subdivision. Whether DCL had a caveatable interest in residential property registered to DM, under a reservation of title clause in the construction contract. The Court found a reservation of title clause without an express right to enter could not give rise to an interest in land, therefore there was no caveatable interest in DM’s property. Application to sustain caveat dismissed and order for removal of caveat.
Companies Act – whether director had breached duty to act in best interests of company -avoidance of Construction Contracts Act adjudication award
DHC was an unpaid creditor of Vaco Investments Ltd following an adjudication under the Construction Contracts Act 2002. Vaco was placed into voluntary liquidation by its sole director, Arnerich.
DHC brought proceedings under s301 of the Companies Act 1993 alleging that Arnerich had breached his duty to act in the best interests of Vaco (as required by s131 of the Companies Act) by causing Vaco to make substantial distributions before DHC’s contractual claims had been ascertained and paid by Vaco. DHC sought an order under section 301 that Arnerich pay the amount DHC was owed by Vaco direct to DHC. Court of Appeal found Arnerich breached s131 by causing Vaco to distribute its remaining funds, without ensuring that Vaco retained sufficient funds to meet contingent claims by DHC. Matter remitted back to the High Court to determine the amount of any further claim by DHC against Vaco under the construction contract, and in light of that, to make such further orders against Arnerich under s301 as appropriate.
Implied obligation in a construction contract – right for damages for delay sought
CPB was head contractor for building work and KME was a subcontractor. Due to delays, CPB twice exercised its contractual right to extend the date for substantial completion. KME attributed delays to CPB’s failure to coordinate trades, failure to allow access to site, and failure to provide timely responses to enquiries over life of job. KME lodged 2 extension of time (EOT) claims which were rejected by CPB. CPB sought to strike out KME’s claims. Whether the Court should grant a declaration that CPB breached contract by failing to grant EOT claims. Court held that contract provided the onus rested on KME to work with other contractors and to call upon CBP to make an EOT ruling only when they were unsuccessful. Process did not leave room for an implied term that the obligation to co-ordinate tradespeople on site was on CBP. Implying terms as pleaded would create a right to damages for delay where none presently existed. Application to strike-out both causes of action granted as they were inconsistent with entire agreement clause dealing with EOTs.
Whether a dispute resolution clause was a bar to exercise of right to terminate contract – whether contractor’s action amounted to repudiation entitling cancellation without an express term providing for such
Jade was contracted to build Pauls’ house. Pauls cancelled the contract after Jade, which had not met two construction milestones, refused to return to work until Pauls paid for the milestones. Jade alleged the construction contract had not been validly cancelled. Whether the dispute resolution clause in contract was a bar to anything other than the issue of court or arbitral proceedings or delayed a right to cancel for repudiation? Court held there were no express words in the dispute resolution clause requiring Pauls to defer exercising right of cancellation until dispute resolution was complete. Termination provisions under s37 of the Contract and Commercial Law Act 2017 applied – cancellation of contract was valid as Jade’s actions amounted to repudiation of contract, despite the absence of a provision in the contract entitling either party to terminate.
The importance of payment schedules – consent judgment – issue of costs
Dispute under the Construction Contracts Amendment Act 2015. Import Solutions engaged Cubo to carry out construction work. Cubo issued payment claims. Import Solutions paid portion and disputed balance and did not respond with payment schedules. Cubo served statutory demand for the balance – ignored by Import Solutions. Parties sought to resolve matter, and settled on the terms set out in a consent judgment with costs still to be resolved. Cubo sought scale costs on a 2B basis with a 50% uplift. Import Solutions had forced Cubo to take steps incurring related costs and did not acknowledge Cubo’s entitlement to outstanding amount until court hearing. Court awarded costs to Cubo on 2B scale.
Judicial review application challenging adjudicator’s determination under Construction Contracts Act 2002
Application by Alaska seeking judicial review of adjudicator’s CCA determination, on the basis that it was incomplete, failed to address all the issues the adjudicator was asked to determine, breached natural justice, and the adjudicator failed to discharge the statutory functions provided for in ss 38, 47 & 48 of the CCA and unreasonably exercised a statutory power. Alaska also alleged adjudicator awarded other party indemnity costs without providing reasons as to why it was reasonable. The Court held that although judicial review was available to challenge an adjudicator’s determination under the CCA, such relief will be available only rarely. The adjudicator’s determination accorded with his statutory functions, nor did he unreasonably exercise his statutory power, nor had Alaska persuaded on judicial review the award and amount of costs was flawed.
Voluntary liquidation – application for directions – project and construction management contract – whether there was an implied express trust in place for funds being paid to third parties
Application for directions by liquidators of Arrow, concerning the status of client’s funds paid to Arrow prior to it being placed into voluntary liquidation. Arrow acted as agent under a project management and construction management contract (PMCM) where clients paid funds to Arrow which paid funds as client’s agent to third parties. Distinction between agent having fiduciary duties and agent having a trust obligation to keep trust assets separate. Accepted that agents such as Arrow had fiduciary obligations. Relationship between Arrow and its PMCM clients was not a trust relationship in its purest sense as Arrow profited from contracts. Extent of fiduciary duties owed by Arrow to PMCM clients was determined by their contract and nature of tasks Arrow undertook. Not the intention of the parties that funds sought by Arrow for the purpose of meeting PMCM clients’ indebtedness to third parties would become the property of Arrow. There was an implied express trust in favour of the PMCM clients in respect of funds paid to Arrow by PMCM clients for payment to trade contractors under contracts made by Arrow on behalf of PMCM clients.
Cromi Investments Limited v CMP Construction Limited  NZHC 2142 (NZ High Court)
Setting aside statutory demand – whether payment claim satisfied CCA requirements as due date not noted in payment claim
Application to set aside statutory demand. Argument between principal (Cromi) and contractor (CMP) over remedial works and release of retention monies held by Cromi under the construction contract governed by Construction Contracts Act 2002. Cromi claimed it was not caught by the sudden death regime under the CCA, as CMP’s payment claim did not meet requirements under the CCA, and there was a genuine dispute about the entire amount claimed by CMP in its statutory demand – payment claim did not satisfy requirements in s 20 CCA as it did not indicate the due date for the payment claimed – as requirements were mandatory and cumulative, there were no corresponding obligations triggered on Cromi – there was a substantial dispute as to the debt which was sufficient to set the statutory demand aside under s 290 Companies Act 1993. Genuine dispute between parties which should be returned to dispute resolution procedure provided for under contract. Application granted – statutory demand set aside.
Payment claims and payment schedules – Construction Contracts Act 2002
Application by OFC seeking to have a statutory demand by ESSL set aside. EFFC issued invoices to OFC it said constituted payment claims under the CCA. Alleged that OFC issued no payment schedules. Whether invoiced amounts became a debt due and payable in accordance the CCA. The High Court held that any challenge must be based on an alleged defect in the payee’s compliance with the statutory requirements of the CCA, not with some additional requirements the construction contract might impose. Payments structured to address reasonable value of work being claimed qualified as valid payment claims. Instalments were agreed proportions of lump sum contract price, payable on stipulated dates.
Anderson v Swindells  NZHC 1803 (NZ High Court)
Judicial review – breach of natural justice or significant error or law by adjudicator – quashing of adjudicator’s determination
Application seeking judicial review of adjudicator’s determination under the Construction Contracts Act 2002, on the grounds the determination was made without jurisdiction, on the basis of mistaken fact, errors of law, failing to take into account relevant considerations, taking into account irrelevant considerations, failing to give coherent and adequate reasons and failing to reach conclusions on issues raised by the parties. Applicant had to demonstrate the Adjudicator had made a significant and substantial error of law or that there was a fundamental and substantial breach of natural justice. Adjudicator determined an issue that was not contained in either of the parties’ adjudication claims and so acted beyond and without jurisdiction. Adjudicator failed to give adequate reasons for determination, and deprived both parties from addressing and making submissions on the issue of compliance or non-compliance with CCA which was a breach of natural justice and contrary to s 41(c) and took into account irrelevant considerations. Order made quashing the adjudicator’s determination.
Determination under CCA 2002 – what costs were recoverable where adjudicator’s decision enforced by entry as a judgment of the District Court.
Dispute between parties to a construction contract was resolved by adjudicator’s determination under the Construction Contracts Act 2002. District Court entered adjudicator’s determination as a judgment, and awarded the adjudication creditor its actual and reasonable costs. Appeal to the High Court against the costs decision which found the adjudication creditor may recover the outstanding payment from the adjudication debtor as a debt due in any Court: s 59(2)(a). Secondly, it may serve notice of its intention to suspend any further construction work under the contract: s 59(2)(b). Thirdly, it may apply for the adjudicator’s decision to be enforced by entry as a judgment: s 59(2)(c). Where the adjudication creditor chose to use the enforcement route under s 59(2)(c), the provisions of s 59(2)(a)(ii) did not apply. Instead, costs will be at the discretion of the District Court in the usual way. Appeal allowed – issue of costs remitted to District Court for determination in accordance with usual principles relating to costs in civil proceedings in the District Court.
Details of payment claim and serving of payment claim – strict adherence to requirements under CCA 2002.
Claim by BCL against Watson pursuant to a construction contract – whether the payment claim by BCL complied with requirements of the Construction Contracts Act 2002 – whether payment claim served by email met service requirements of Construction Contracts Regulations 2003. Court noted a payment claim must be sufficiently detailed and comprehensible to enable a payer to understand the basis on which the claim is made. Only then could the payer decide whether to accept it or to put the payee on notice of a dispute by providing a payment schedule in response explaining the payer’s reasons for disagreeing with the claim. BCL’s payment claim was not sufficiently detailed and comprehensible to enable Watson to understand basis on which various claims were made – Watson unable to respond in accordance with s 21 CCA. While the parties used email to communicate on day-to-day matters related to the contract, it did not follow under r 10(2)(b) CCR, that it could be reasonably inferred from such conduct, that Watson consented to the service of a payment claim by email. BLC’s claim dismissed.
Body Corporate 200012 v Keene & Ors  NZHC 2953 30 November 2017 (NZ High Court)
Application for judicial review of adjudication determinations
The Court dismissed the application for judicial review and the appeal, holding that BC12’s claims did not in fact go to the jurisdiction of the adjudicator’s decisions, but rather related to contractual interpretation, which plainly fell outside the scope of judicial review. To succeed in an application for judicial review, BC12 would have needed to show: a genuine excess of jurisdiction by the adjudicator; a serious breach of natural justice; or some apparent and significant error of law. BC12 had not succeeded on any of these three points. Accordingly, the Court refused to allow BC12 to undermine the CCA by using the judicial review process as a deliberate strategy to avoid the CCA’s “pay now, argue later” policy.
judicial review of ruling on jurisdiction – arbitration clause – contractual right to refer to adjudication – right to refer disputes to adjudication – international construction contract
Subcontract contained clause providing that disputes may be dealt with by adjudication as provided for in the Construction Contracts Act 2002. Adjudicator held that this clause permitted the contracting parties to invoke the adjudication procedure and that consent was given at the time of entering into the subcontract. Court not persuaded the adjudicator erred in his decision finding that the clause in the subcontract recorded in advance the parties consent to the use of adjudication as required by s25(3) of the Act. Application for review declined.
PAK HOLDINGS LIMITED (T/A HUMPHRIES CONSTRUCTION) v PROLIANT NZ LIMITED  NZDC 15368 17 August 2016 (NZ District Court)
Construction Contracts Act – summary judgment – statutory debt – scheduled amount unpaid – defence s24 and s29 of CCA not applicable
Summary judgment brought on basis that, in terms of the contract and the provisions of the CCA, the sum the subject of the final payment schedule was a debt due to Humphries from Proliant and that Proliant had no defence to the claim. Proliant argued that it had a counter-claim or set-off exceeding the sum sought by Humphries and pleaded that s24 and s29 of the CCA were not applicable. Summary judgment entered. The Court was satisfied that the technical payment procedure steps had been followed and Proliant had no arguable defence.
CENTRAL LAKES HOMES LTD v CLARK  NZDC 396 1 February 2016 (NZ District Court)
summary judgment – BDT adjudicator’s decision made under s48(1)(a) – payment claimed under a contract – damages
Application for summary judgment opposed on the basis that the determination was said to properly have been made under s48(1)(b) of the Act, rather than s48(1)(a), with the result being that the plaintiff was not entitled to recover payment because s59 of the Act did not apply to any awards made under s48(1)(b). The Court found that the damages is question must arise out of the default of the defendant. His repudiation of the contract and the resulting termination meant that the damages must arise out of the contract repudiation. Summary judgment entered for the plaintiff.
** NB: the construction contract the subject of this decision pre-dates the amendments to the CCA in December 2015 regarding enforcement.
Application (by Manchester) for judicial review alleging errors of law by adjudicator in a determination under the Construction Contracts Act 2002. Judge found there had been an error of law in the adjudicator ruling that a payment schedule had to be contained in a single document, but despite this, the Court considered Manchester had still provided inadequate communications to constitute a payment schedule. Accordingly, application for judicial review dismissed.
CENTRAL LAKES HOMES LIMITED v CLARK  NZDC 396 (NZ High Court)
Fixed price contract for construction of property by Central Lakes Homes. Determination by Building Disputes Tribunal ordering defendant to pay claimed sum. Plaintiff (Central Lakes) now seeking summary judgment against defendant. BDT adjudication determination upheld – Judge considered that the defendant had only raised factual disputes which had already been dealt with in the adjudication determination, and the fact that someone is aggrieved by a determination is not, of itself, sufficient for a Judge to revisit the factual scenario upon which a determination was made. Judgment for the plaintiff.
WEST CITY CONSTRUCTION LTD v HENRY DAVID LEVIN AND DAVID STUART VANCE AS LIQUIDATORS OF ST GEORGE DEVELOPMENTS LTD (IN LIQUIDATION)  NZSC 183 15 December 2014 (NZ Supreme Court)
WATTS HUGHES CONSTRUCTION LIMITED v COMPLETE SITEWORKS COMPANY LIMITED  NZCA 564 26 November 2014 (NZ Court of Appeal)
WAIORA TRADING LTD v O’SULLIVAN  NZHC 304 26 February 2014 (NZ High Court)
Application for judicial review of adjudicator’s determination – respondent of adjudication arguably not party to the construction contract – arguments not assessed by the adjudicator – Adjudicator error – Judicial review.
SEALEY v CRAIG  NZHC 520 12 March 2014 (NZ High Court)
Appeal against order striking out part of claim – inadequate legal advice for payment schedule – implied term in contract of retainer – actual loss.
SARDAN TRUSTEES LIMITED v MAGSON’S HARDWARE LIMITED HC AK CIV-2013-404-4684  NZHC 460 13 March 2014 (NZ High Court)
BLAIN v EVAN JONES CONSTRUCTION LTD – NZCA 680 December 2013 (NZ Court of Appeal)
Application to set aside third party notice – does the law recognize a cause of action in negligence against the builder of a commercial building – do the terms of the contract consist of the respondent owing a duty of care in tort – whether the Construction Contracts Act dispute procedure means that obligations are to be governed exclusively by the contract.
ADDIS CONTAINERS LTD v ALUMINIUM CITY LTD CIV-2012-004-1745 24 May 2013 (NZ District Court)
summary judgment – construction contract – whether shipping containers formed part of the land – natural justice
Application opposed on basis contract was not a construction contract to which the CCA applies (shipping containers) and that the adjudicator failed to observe the rules of natural justice in failing to take into account the respondent’s protests as to jurisdiction. Temporary nature of containers nor relevant given that construction work may be permanent or not. On the facts the Court found that the containers came within the meaning of construction work under the CCA. The District Court does not possess the jurisdiction to review a determination where allegations of breaches of natural justice are made by a party (only the High Court may do so). Application opposing entry of determination as judgment dismissed.
Application for stay of insolvency proceedings Canam Construction Ltd v Ormiston Hospital Investments Ltd – Service Donovan Drainage and Earthworking Ltd v Kaipara District Council, Bills v Arnold Jensen (2005) Ltd – Section 79 Volcanic Investments Ltd v Dempsey & Wood Civil Contractors Ltd – Unfairness
Application to set aside statutory demand – Genuine and substantial dispute – Insolvency – CCA application George Developments Ltd v Canam Construction Ltd – Payment Claim – Payment due date Winslow Properties Ltd v Wooding Construction Ltd, Loveridge Ltd v Watson Construction Ltd, McAlpine Hussman Ltd v Cooke Industries Ltd – Payment Schedule Marsden Villas Ltd v Wooding Construction Ltd.
Costs – Section 24 Volcanic Investments, Laywood v Homes Construction Wellington Ltd
Application to set aside third party notice and summary judgement notice – Indemnity – Concurrent liability.
Application to set aside statutory demand – Payment claim – Payment schedule – Estoppel – Section 70 – Substantial dispute – Set-off/counterclaim.
Property suspension – Council authority – Judicial review – ‘Land’ definition – ‘Construction work’ definition from CCA.
Costs – Primary relief Sunglass Hut New Zealand Ltd v Amtrust Properties Ltd
Application to set aside statutory demand – Service – Nullity
Application to set aside statutory demand – Payment claim – Set-off, Counter claim Volcanic Investments Ltd v Dempsey & Wood Civil Contractors
Ltd – Section 79 Laywood v Holmes Construction Wellington Ltd – Oppressive/unfair proceeding
CMP CONSTRUCTION LTD v ALUMINIUM TECHNOLOGY LTD HC AK CIV-2013-404-2692 23 September 2013 (NZ High Court)
Application to set aside statutory demand – Entitlement to revised claims – Payment schedule Marsden Villas Ltd v Wooding Construction Ltd – Legal effects of a void contract.
Right to adjudication – Section 76 – Jurisdiction
FINESSE RESIDENTIAL LTD v VASANTHAN HC AK CIV-2013-404-3026 3 December 2013 (NZ High Court)
Application for summary judgment – Construction contract definition.
TAUBER & ORS v THE COMMISSIONER OF INLAND REVENUE COA CA564/2011 7 September 2012 (NZ Court of Appeal)
Judicial review of decision for execution of warrants of seized documents.
JFC BUILDERS PTE LTD v LIONCITY CONSTRUCTION CO PTY LTD 8 August 2012 (Singapore High Court)
BOAT HARBOUR HOLDINGS LTD v STEVE MOWAT BUILDING LTD COA CA146/2011 13 July 2012 (NZ Court of Appeal)
Caveatable interests – Remedial constructive trust Fortex Group Ltd (in rec and liq) v MacIntosh
MCNAMARA AND ORS v AUCKLAND CITY COUNCIL SC 852010 9 May 2012 (NZ Supreme Court)
MARLBOROUGH DISTRICT COUNCIL v ALTIMARLOCH JOINT VENTURE LIMITED SC 33/2010 5 March 2012 (NZ Supreme Court)
SCANDLE v FAR NORTH DISTRICT COUNCIL COA CA619 2010 1 MARCH 2012 (NZ Court of Appeal)
Costs – Awarded to the defendant in part
Security of costs – Awarded to defendant – Court’s discretion
Application for award as judgement – Discretion Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd – Stand down period
Costs Auckland Waterproofing Ltd v TPS Consulting Ltd – Indemnification Westpac Banking Corporation v Topless – Awarded to plaintiff
Application to set aside statutory demand – Not granted
Application to set aside statutory demand – Not granted – Payment schedule – Must specify amount – Payment claim – Reference to order number sufficient identification for construction work
Application to set aside statutory demand – Agency – Not granted
Application for freezing order – International
Costs – Awarded to plaintiff
Application to set aside statutory demand – No set-off clause Brown’s Real Estate Ltd, Simply Logistics Ltd v Real Foods Ltd
Application for leave to appeal from a decision of the HC of no right to appeal under the WHRS Act Siemer v Heron – Not granted.
VEGAR-FITZGERALD v NOYCE AND MAWDSLEY HC AK CIV-2012-404-1683 29 May 2012 (NZ High Court)
Application to maintain finance agreement
RJ VIALL BUILDERS LIMITED v PARTRIDGE HC AK CIV-2012-404-1482 6 July 2012 (NZ High Court)
Costs – Awarded to plaintiff
Summary judgment for levies
Application for statutory demand – Immediate liquidation order – ‘Pay now argue later’ arguments not absolute
Payment schedule – Email – Non-compliance with requirements – Cannot set-aside statutory demand because of substantial dispute
READY MARK LIMITED v JILL GRANT COA CA440/2011 28 September 2012 (NZ High Court)
Application to set aside bankruptcy notice – Agreement to exclude crossclaims
REES v FIRTH COA CA328/2011 20 December 2011 (NZ Court of Appeal)
Judicial review of determination Speymill Contracts Ltd v Baskind – Standing
DONOVAN DRAINAGE & EARTHMOVING LIMITED v HALLS EARTHWORKS LIMITED (IN LIQUIDATION) COA CA403/2011 29 August 2011 (NZ Court of Appeal)
Application for second appeal
REES v FIRTH COA CA328/2011 29 July 2011 (NZ Court of Appeal)
Unconditional stay granted – Scope of judicial review
OGILVIE v L STEVENS BUILDERS LIMITED CIV-2010-063-000299 18 February 2011 (NZ District Court)
Application for liquidation of defendant – Section 310 of Insolvency Act overrides CCA
Payment claims – Progress payments
Caveat – Prejudicial disposition
Costs – Equal apportionment
Costs – Awarded to plaintiff
Costs – Reduced amount awarded to plaintiff
Estoppel – Res judicata – Jurisdiction of ‘party’ – Collateral contracts
Interim relief declined Concrete Structures (NZ) Ltd v Palmer, Construct Interiors v Jones
Payment claim – Contract payment due date for payment – Payment otherwise due being payable – Bad faith Cube Building Solutions Ltd v King – Payment schedule – Must specify reasons and amount – Breach of natural justice – Discretionary relief
Application to set aside bankruptcy notice Laywood v Holmes Construction Ltd – Not granted.
Summary judgement; granted, reasonable defence. Potential claim as residential owner under CCA
Application to set aside statutory demand – Payment claim invalid – Set aside – Payment schedule – Letter – Content non-compliant with technicalities but valid – Course of conduct – Service – Section 80 not mandatory requirements
Costs – Awarded to plaintiff
Costs – Awarded to defendant
HOLMES CONSTRUCTION WELLINGTON LIMITED v FIRTH HC AK CIV-2010-404-007674 6 July 2011 (NZ High Court)
Application to stay judgement – Injuriously affected – Granted conditionally
CHOW GROUP LIMITED v WALTON HC AK CIV-2011-404-3148 14 July 2011 (NZ High Court)
Early fixture application
Application to set aside statutory demand – Not granted
Judicial review of determination – Bad faith Cube Buildings Solutions Ltd v King – Payment schedule – Content – Natural justice Construct Interiors NZ Ltd v Jones
M Van der Wal Builders & Contractors Limited v Walker CIV 2011-004-000083 26 August 2011 (NZ High Court)
Associate Judge Christianson
construction contract – whether contract entered into – jurisdiction – summary judgment – judicial review – debt due – genuinely arguable
Adjudicator determined a binding contract had been entered into and breached by the defendants. Summary judgment was declined on the basis that there was an arguable case that a construction contract had not been concluded and it followed therefore that there was an arguable case the adjudicator had no jurisdiction for the determination he made.
Set aside statutory demand; partially granted; invalidity of payment schedule, substantial dispute proven
Application to set aside statutory demand – No set-off contract clause Grant v NZMC Ltd, Browns Real Estate Ltd v Grand Lakes Properties Ltd – No clause concerning counterclaim and cross-demand – Granted
Application for summary judgment – Payment claim – Invalid due date – Cannot amend defect through subsequent payment claim
Application to remove caveat
HERBERT CONSTRUCTION COMPANY LIMITED V PI ALEXANDER, BE ALEXANDER, MJ MOLLIER AND MP WARD IN PARTNERSHIP TRADING AS THE CHRISTIE CROWN PARTNERSHIP HC NAP CIV-2011-441-500 21 October 2011 (NZ High Court)
Application for summary judgment – Payment claim – Payment schedule – Failure to issue does not alter payment due date
Application for set-off and counterclaim under PLA
Application to set aside bankruptcy notice – Set-off not a liquidated sum or disputed – Section 79 – Not granted – Amount in bankruptcy notice amended to be GST exclusive
Judicial review – Strike-out principles – Issue estoppel
Application to set aside statutory demand – Court discretion – Construction work definition not – Installation of software
Costs – Awarded to plaintiff
Summary judgment – Addition of ‘parties’
Expert Determination – Application for stay of proceedings – Completion statements
Weathertight Homes Tribunal appeal – Individual liability
CONCRETE STRUCTURES (NZ) LIMITED v NZ WINDFARMS LIMITED CA CA239/2009 4 October 2010 (NZ Court of Appeal)
Notice of adjudication – Costs – Awarded to the defendant
BROWNS REAL ESTATE LIMITED v GRAND LAKES PROPERTIES LIMITED CA157/2010 20 September 2010 (NZ Court of Appeal)
Application to set aside statutory demand (not CCA) – Reference to Laywood v Homes Construction Wellington Ltd.
DORIC INTERIORS & CONSTRUCTION LIMITED (IN LIQUIDATION) v MAGSONS HARDWARE LIMITED AND ANOR CA CA547/2009 1 June 2010 (NZ Court of Appeal)
Statutory demand – Company now in liquidation – Appeal as to parties to the contract – Substantial dispute – Construction Contracts Act regime – Was there a construction contract – Appeal dismissed
Origin Energy Resources (Kupe) Limited v Tenix Alliance New Zealand Limited HC AK CIV 2010-404-00106 19 January 2010 (NZ High Court)
Application for interim injunction – Jurisdiction of adjudicator – Referral of disputes to arbitration – International Arbitration
Origin contended that the dispute could not be referred to adjudication as the contract provided for disputes to be referred to arbitration which would be an international arbitration as defined in Schedule 1 of the Arbitration Act 1996. It was argued that the question of jurisdiction ought to be determined by the High Court. Potter J considered that the appropriate procedure was for the matter to proceed to adjudication before the appointed adjudicator, for the parties to make their submission to the adjudicator and for him to determine the issue of jurisdiction.
CENTRAL HOUSE MOVERS LIMITED V DAVID RENNIE RUSSELL AND KAREN LEANNE RUSSELL HC PMN CIV 2010-454-000103 20 May 2010 (NZ High Court)
Costs – Awarded to the plaintiff – Construction work definition – Includes relocation of villa
DRIFTWOOD DEVELOPMENTS LIMITED V PIMLICO PROPERTIES LIMITED HC CHCH CIV-2010-409-000301 3 June 2010 (NZ High Court)
Application to set aside statutory demand – Court’s discretion
LUND SOUTH LIMITED V AAA TOUGH PLUMBING & DRAINAGE LIMITED HC DUN CIV 2009 412 000949 4 June 2010 (NZ High Court)
Application to set aside default statutory demand – Failure to appear – Incorrect defendant – Parties’ conduct
JACK TAGGART AND PATRICIA TAGGART V JIM VISSER LIMITED HC AK CIV-2010-404-3149 30 July 2010 (NZ High Court)
Application to set aside determination – Court intervention Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd
CANAN CONSTRUCTION LTD V ORMISTON HOSPITAL INVESTMENT LTD HC AK CIV 2010-404-000291 10 August 2010 (NZ High Court)
Liquidation of defendant – Application to stay proceedings Taxi Trucks Ltd v Nicholson – Genuine/substantial dispute – Section 79 – Irretrievable prejudice Concrete Structures (NZ) Ltd v Palmer, Yun Corporation Ltd v YQT Ltd
MOYLE CONSTRUCTION LIMITED V STOLLERY & ORS HC TAU CIV 2009-470-889 12 August 2010 (NZ High Court)
Costs – Awarded to plaintiff – Interest
DONOVAN DRAINAGE & EARTHMOVING LTD V KAIPARA DISTRICT COUNCIL HC WHA CIV-2010-488-000319 18 August 2010 (NZ High Court)
Summary judgement – Service – Equates ‘giving a schedule’ with ‘providing a schedule’ – Postal rule
HERBERT CONSTRUCTION COMPANY LIMITED V MICHAEL FEATHERSTON TOOGOOD HC NAP CIV-2010-441-283 20 August 2010 (NZ High Court)
Summary judgement – Service – No requirement for address to payer – Section 80 not mandatory requirements – Costs – Reduction due to lack of proportionality – Payment claim – Payment schedule
CONSTRUCT INTERIORS NZ LIMITED V JONES AND ANOR HC AK CIV-2010-404-897 23 August 2010 (NZ High Court)
Application for judicial review of determination
MAGSONS HARDWARE LIMITED AND ANOR V PRITISH PATEL AND ANOR HC AK CIV-2010-404-2891 10 September 2010 (NZ High Court)
Costs – Equal apportionment
REDICAN ALLWOOD LIMITED V RAB CONTRACTING LIMITED HC WN CIV-2010-485-912 9 November 2010 (NZ High Court)
Costs – Claim for indemnity – Awarded to plaintiff
CONCRETE STRUCTURES (NZ) LTD V INFRAMAX CONSTRUCTION LTD HC HAM 9 November 2010 (NZ High Court)
Summary judgement – Determination does not create an issue estoppel or activate the doctrine of res judicata Marsden Villas Ltd v Wooding Construction Ltd, Donovan Drainage and Earthmoving Ltd v Halls Earthworks Ltd – Use of determination in subsequent court proceedings – Confidentiality – Payment schedule – Nil value – Invalid – Costs – Cannot include prior adjudication costs – Awarded to plaintiff
DONOVAN DRAINAGE & EARTHMOVING LTD V HALLS EARTHWORKS LTD HC AK CIV-2010-404-000029 10 November 2010 (NZ High Court)
Judicial review – Determination – Issue estoppel – Doctrine of res judicata – Costs – Indemnity costs – Increased costs judgement Bradbury v Westpac Banking Corp
REAL COOL HOLDINGS LTD & REAL COOL LTD V PAGE & MACRAE LTD HC TAU CIV-2010-470-685 12 November 2010 (NZ High Court)
KARIITI LTD V DONOVAN DRAINAGE & EARTHMOVING LTD HC WHA CIV-2010-488-000613 19 November 2010 (NZ High Court)
Interim order – Risk of non-payment Total M and E Services Ltd v ABB Building Technologies, Jerscel Engineering Ltd v Breen Property Ltd – Strength of payer’s cause Wilsons (NZ) Portland Cement Ltd v Gatx-Fuller Australasia Pty Ltd
THE COMMISSIONER OF INLAND REVENUE V THE FISHING COMPANY LTD HC AK CIV-2010-404-004955 14 December 2010 (NZ High Court)
Application for liquidation of defendant – GST input credit claim – ‘Pay first, argue later’.
LUXTA LIMITED V PARAGON BUILDERS LIMITED HC WN CIV-2010-485-1825 17 December 2010 (NZ High Court)
Application to set aside statutory demand – Section 79 does not prohibit reduction of the amount claimed/set-off – Service – Section 80 not mandatory requirements.
DONALD JOHN MACRITCHIE v TRUSTEES EXECUTORS LTD CIV-2009-085-359 12 August 2009 (NZ District Court)
BLENHEIM BUILDING CENTRE LTD v DALLAS HEMPHILL CIV-2009-006-000034 7 August 2009 (NZ District Court)
QUEENSTOWN LAKES DISTRICT COUNCIL v CHARTERHALL TRUSTEES LTD CA CA441/2008 25 August 2009 (NZ Court of Appeal)
LAYWOOD AND REES v HOLMES CONSTRUCTION WELLINGTON LTD SC 23/2009 15 May 2009 (NZ Supreme Court)
IAN LAYWOOD AND GARY REES v HOLMES CONSTRUCTION WELLINGTON LIMITED CA CA83/2008 25 February 2009 (NZ Court of Appeal)
INVENT SOLUTIONS LIMITED V CHAN DEVELOPMENTS TRUSTEE LIMITED HC WN CIV 2008-485-2834 1 April 2009 (NZ High Court)
Application for Summary Judgment – Payment Claims – Payment Schedule – Requirements for valid Payment Schedule
Patel v Pearson Group Limited CIV 2008-485-2571 24 April 2009 (NZ High Court)
opposition to application to enforce judgment – jurisdiction of adjudicator – correct parties to contract – extension of jurisdiction – application refused
Appeal from District Court decision that a determination should be entered as a judgment. Appellant argued that entry ought to have been refused because there was no contract between her and Pearson Group Limited, but rather, that the builder was a Mr Pearson, the director and principal shareholder of Pearson Group Limited, the latter company only having been incorporated after the relevant contract was entered into. The Court held the District Court has jurisdiction to refuse to enter a determination as a judgment on the ground that there is no contract between the parties to the adjudication. However, the Judge was right to enter the determination as a judgment in this case, for the parties had conferred jurisdiction on the adjudicator.
Application for interim relief – Judicature Act – Suspension – Bankruptcy – Adjudication – Judicial Review – Payment Claim – Payment Schedule – Costs – Application for interim relief successful
ARNOLD JENSEN 2005 LTD v BILLS & OTHERS CIV-2008-009-54 5 June 2008 (NZ District Court)
PEARSON GROUP LIMITED v KALPANA PATEL CIV-2008-085-000962 24 October 2008 (NZ District Court)
AMC CONSTRUCTION LIMITED v FREWS CONTRACTING LIMITED CA CA145/2008 25 September 2008 (NZ Court of Appeal)
DONOVAN DRAINAGE AND EARTHMOVING LIMITED v HALLS EARTHWORKS LIMITED (IN LIQUIDATION) CA CA463/07 23 May 2008 (NZ Court of Appeal)
Enforcement of a determination – Jurisdiction – Charging Orders
CIVIL CONSTRUCTION GROUP LIMITED v DHUEZ LIMITED (IN REC) HC AK CIV-2006-404-4336 4 June 2008 (NZ High Court)
Payment claim – Failure to identify claim as under Act
TAYLER V LAHATTE AND ANOR HC AK CIV 2007-404-6843 24 June 2008 (NZ High Court)
BLOSSOM WOOL LIMITED V J W PIPER HC AK CIV 2008-404-000161 30 June 2008 (NZ High Court)
Application to set aside statutory demand – Genuine dispute – Arguable basis for dispute – Role of Court in statutory demand hearings – Requirements for a Contract – Costs awarded on 2B basis
BENTZEN FARM LTD V BAYLEY & ANOR HC WHA CIV-2008-488-653 22 September 2008 (NZ High Court)
MA COLES V B BARNETT HC NAP CIV 2008-441-422 10 October 2008 (NZ High Court)
Application for Summary Judgment – Payment Claim – Payment Schedule – Charge up contract
STEELE v SEREPISOS SC 68/2005 4 September 2006 (NZ Supreme Court)
sale and purchase agreement – jurisdiction of CCA – construction work under agreement – construction contract
SALEM LTD v TOP END HOMES LTD CA CA169/05 4 April 2006 (NZ Court of Appeal)
CASATA v GENERAL DISTRIBUTORS LTD SC26.2005 SCNZ 15 March 2006 (NZ Supreme Court)
Stellar Projects Limited v Nick Gjaja Plumbing Limited HC AK CIV 2005-404-6984 10 April 2006 (NZ High Court)
Appeal against determination being entered as a judgment in the District Court – Section 72 District Courts Act 1947 – Section 73 and Section 74 of Construction Contracts Act – Appointment of Adjudicator by Authorised Nominating Authority
There was no standing to act as adjudicator as the proper appointment process had not been followed with no agreement made between the party nor any appointment made by an authorised nominating authority. Therefore, no basis for the entry of judgment in the District Court.
Appeal allowed. Determination has no effect in law or in equity.
Application to set aside statutory demand – Failure to issue a valid Payment Schedule – Does the Act prevent parties disputing that there is a debt due – Demand set aside on basis of dispute
Suspension of Construction Work under the Act – Time period for issue of Payment Claims – Service of Claims and Schedules – Failure to provide valid Payment Schedule.
CONSTRUCTION SERVICE COMPANY (WELLINGTON) LTD (IN REC) V WELLINGTON WATERFRONT LTD HC WN CIV 2006-485-2287 13 September 2006 (NZ High Court)
Application for Summary Judgment – Principles of Summary Judgment – Failure to issue a Payment Schedule – Issue of Notice of Default – NZS3910:2003 – Section 79 of Construction Contracts Act
SALEM LTD V TOP END HOMES LTD CA CA169/05 12 December 2005 (NZ Court of Appeal)
SALEM LTD v TOP END HOMES LTD CA 169/05 27 September 2005 (NZ Court of Appeal)
Payment claim – Form – Course of conduct – Payment schedule – ‘Indicate’ definition
GEORGE DEVELOPMENTS LTD v CANAM CONSTRUCTION LTD CA 244/04 12 April 2005 (NZ Court of Appeal)
CONCRETE STRUCTURES v PALMER HC CIV2004_463_825 6 APRIL 2005 (NZ High Court)
TOP END HOMES v SALEM HC CIV 2005 488 000332 19 JULY 2005 (NZ High Court)
Plaintiff (builder) seeking summary judgment against defendant for work carried out on defendant’s property pursuant to a construction contract. Defendant failed to pay final payment claim sum submitted by plaintiff, or to submit a payment schedule within the time limit required under the CCA. Judgment in favour of plaintiff, summary judgment granted as Court satisfied that defendant had no reasonably arguable defence.
TUF PANEL CONSTRUCTION v CAPON CIV-2003-044-2801 15 March 2004 (NZ District Court)
Construction contract definition.