HOME BUILDER BOP LTD v FORMAN & TURNER [2017] NZHC 2155

HOME BUILDER BOP LTD v FORMAN & TURNER [2017] NZHC 2155

Leave to appeal was refused on the first and second questions because the arbitrator applied accepted principles of contractual interpretation and resolved document ambiguities in a manner open to an experienced arbitrator (no strong indication of legal error); leave was granted on the third question because there is a strongly arguable point of law that the six-year limitation period for money had and received accrues when the money is received and thus the applicant has a strongly arguable case that the claims were time-barred; leave was refused on the fourth question because the award contained adequate reasons.

Citation
[2017] NZHC 2155
Parties
Applicant: Home Builder BOP Ltd; Respondents: Nigel Kelvin Forman and Clare Lesley Turner as trustees of the NK Forman Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 October 2017
Procedural Posture
Application for Leave to Appeal Arbitral Award Under the Arbitration Act 1996 / High Court Leave to Appeal Application (interim Award of Sole Arbitrator)
Outcome
Application for leave to appeal granted in part and refused in part
Legal Topics
Contractual Interpretation, Questions of Law Vs Mixed Fact and Law, Leave to Appeal From Arbitral Award, Limitation Period Accrual, Money Had and Received, Reasoned Arbitral Awards
Arbitration Contract Law Construction Law Restitution / Unjust Enrichment Limitation Law Contractual Interpretation Questions of Law Vs Mixed Fact and Law Leave to Appeal From Arbitral Award +3 more

Case Brief

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Parties

Home Builder BOP Ltd

Applicant

Nigel Kelvin Forman and Clare Lesley Turner as trustees of the NK Forman Family Trust

Respondents

Procedural Posture

Application for Leave to Appeal Arbitral Award Under the Arbitration Act 1996 / High Court Leave to Appeal Application (interim Award of Sole Arbitrator)

Legal Issues

  1. 1 Whether the arbitrator erred by treating the $38 builders' labour rate as an estimate rather than a fixed price
  2. 2 Whether the arbitrator erred in concluding the 9% margin did not apply to the director's labour
  3. 3 Whether claims in relation to payment claims 1-9 were brought within the limitation period (when cause of action accrued)

Ratio Decidendi

Leave to appeal was refused on the first and second questions because the arbitrator applied accepted principles of contractual interpretation and resolved document ambiguities in a manner open to an experienced arbitrator (no strong indication of legal error); leave was granted on the third question because there is a strongly arguable point of law that the six-year limitation period for money had and received accrues when the money is received and thus the applicant has a strongly arguable case that the claims were time-barred; leave was refused on the fourth question because the award contained adequate reasons.

Court Disposition

Application for leave to appeal granted in part and refused in part

Orders

  • Leave to appeal granted only in respect of the third question of law (limitation accrual for payment claims 1-9)
  • Leave to appeal refused in respect of the first, second and fourth questions of law