THE MINISTER OF EDUCATION v PXA LTD [2015] NZHC 1330

THE MINISTER OF EDUCATION v PXA LTD [2015] NZHC 1330

Although Disputes Section K cl 94 was part of the contract between the Board and HCL, the clause is inoperative for the present dispute because its procedures and time limits plainly apply only while the building contract is current; further, the Board was acting as a consumer under s 11 of the Arbitration Act 1996 and no separate written agreement complying with s 11 was produced, so the arbitration clause is not enforceable against the Board; accordingly the stay and referral to arbitration was refused.

Citation
[2015] NZHC 1330
Parties
First Plaintiff: Minister of Education; Second Plaintiff: Secretary for Education; Third Plaintiff: Board of Trustees of Heaton Normal Intermediate School; First Defendant: PXA Limited; Second Defendant: Higgs Construction Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 June 2015
Procedural Posture
Civil Construction/tort / Application to Stay Proceedings and Refer to Arbitration (interim Application)
Outcome
Application to stay proceedings and refer to arbitration dismissed
Legal Topics
Arbitration Agreement Enforceability, Scope of Arbitration Clause, Consumer Arbitration Agreements, Stay of Proceedings, Incorporation of Contract Terms, Building Defects/weathertightness
Arbitration Contract Construction Tort Civil Procedure Arbitration Agreement Enforceability Scope of Arbitration Clause Consumer Arbitration Agreements +3 more

Case Brief

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Parties

Minister of Education

First Plaintiff

Secretary for Education

Second Plaintiff

Board of Trustees of Heaton Normal Intermediate School

Third Plaintiff

PXA Limited

First Defendant

Higgs Construction Limited

Second Defendant

Procedural Posture

Civil Construction/tort / Application to Stay Proceedings and Refer to Arbitration (interim Application)

Legal Issues

  1. 1 Whether there is a written arbitration agreement between the Board and HCL
  2. 2 Whether any arbitration agreement is inoperative
  3. 3 Whether any written arbitration agreement is enforceable under s 11 Arbitration Act 1996 (consumer protection)

Ratio Decidendi

Although Disputes Section K cl 94 was part of the contract between the Board and HCL, the clause is inoperative for the present dispute because its procedures and time limits plainly apply only while the building contract is current; further, the Board was acting as a consumer under s 11 of the Arbitration Act 1996 and no separate written agreement complying with s 11 was produced, so the arbitration clause is not enforceable against the Board; accordingly the stay and referral to arbitration was refused.

Court Disposition

Application to stay proceedings and refer to arbitration dismissed

Orders

  • Application to stay and refer to arbitration dismissed
  • HCL to pay plaintiffs' costs on a 2B basis plus disbursements fixed by the Registrar