PERYER CONSTRUCTION WGTN LIMITED v CATHIE [2019] NZHC 2881

PERYER CONSTRUCTION WGTN LIMITED v CATHIE [2019] NZHC 2881

The Court held that clause 13 is a mandatory contractual submission to staged dispute resolution and, although the Court had jurisdiction (the defendant had participated in earlier interlocutory proceedings), the proper exercise of that jurisdiction was to set aside the defendant's appearance under protest and stay the proceeding pending reference of any residual dispute to the contractual dispute resolution process in clause 13; the existing expert is likely functus officio so any new references must be made afresh, and the parties have leave to seek further court assistance if necessary.

Citation
[2019] NZHC 2881
Parties
Plaintiff/applicant: PERYER CONSTRUCTION WGTN LIMITED; Defendant/respondent: ELIZABETH MARY CATHIE
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 November 2019
Procedural Posture
Contract Dispute (building/construction) / Interlocutory: Application to Set Aside Appearance Under Protest to Jurisdiction and Stay Proceeding
Outcome
Defendant's appearance under protest set aside; proceeding stayed pending contractual dispute resolution under clause 13; leave to apply for further court assistance; costs reserved.
Legal Topics
Expert Determination, Stay for Contractual Dispute Resolution, Protest to Jurisdiction, Setting Aside Appearance, Breach of Contract
Contract Law Construction Law Civil Procedure Alternative Dispute Resolution Expert Determination Stay for Contractual Dispute Resolution Protest to Jurisdiction Setting Aside Appearance +1 more

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Parties

PERYER CONSTRUCTION WGTN LIMITED

Plaintiff/applicant

ELIZABETH MARY CATHIE

Defendant/respondent

Procedural Posture

Contract Dispute (building/construction) / Interlocutory: Application to Set Aside Appearance Under Protest to Jurisdiction and Stay Proceeding

Legal Issues

  1. 1 Whether clause 13 of the contract constitutes a mandatory submission to dispute resolution
  2. 2 Whether the High Court has jurisdiction given the defendant's prior active participation in interlocutory proceedings
  3. 3 Whether the proceeding should be stayed and the dispute referred to the contractual dispute resolution process

Ratio Decidendi

The Court held that clause 13 is a mandatory contractual submission to staged dispute resolution and, although the Court had jurisdiction (the defendant had participated in earlier interlocutory proceedings), the proper exercise of that jurisdiction was to set aside the defendant's appearance under protest and stay the proceeding pending reference of any residual dispute to the contractual dispute resolution process in clause 13; the existing expert is likely functus officio so any new references must be made afresh, and the parties have leave to seek further court assistance if necessary.

Court Disposition

Defendant's appearance under protest set aside; proceeding stayed pending contractual dispute resolution under clause 13; leave to apply for further court assistance; costs reserved.

Orders

  • Set aside the defendant's appearance under protest to jurisdiction pursuant to r 5.49(5) High Court Rules 2016.
  • Stay the plaintiff's proceeding pursuant to r 15.1(3) High Court Rules 2016 pending the reference of any residual dispute to resolution pursuant to clause 13 of the contract.