THE GAMA FOUNDATION v FLETCHER STEEL LTD [2023] NZCA 243

THE GAMA FOUNDATION v FLETCHER STEEL LTD [2023] NZCA 243 [15 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA625/2021[2023] NZCA 243BETWEEN THE GAMA FOUNDATIONAppellantAND FLETCHER STEEL LIMITEDRespondentHearing: 23 February 2023Court: Clifford, Wylie and Whata JJCounsel: T Mijatov and R A Hearn for AppellantW R Potter for RespondentJudgment: 15 June 2023 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an appeal by The Gama Foundation (Gama), pursuant to special leavegranted by this Court after leave was declined by the High Court, against a decisionof the High Court declining Gama leave to appeal an arbitral award (the Award)relating to a lease dispute to that Court.[2] The outcome Gama seeks from this Court is, accordingly, a grant of leave toappeal the Award to the High Court.Background[3] In the 1970s Gama leased warehouse premises in Christchurch to therespondent, Fletcher Steel Ltd (Fletcher Steel). The buildings on the premises weredesigned and sited to meet Fletcher Steel's needs. The lease at issue here ran for10 years, expiring on 31 August 2016. During its term the Canterbury sequence ofearthquakes damaged the premises. As relevant here, the lease contained a number ofrepair and maintenance covenants. Fletcher Steel accepted it was, at the expiry of thelease, in breach of many of these covenants. Various issues arose.[4] In the year or so before the expiry of the lease Gama, Fletcher Steel and theirrespective experts discussed the required repairs. Agreement was reached on only alimited range of issues. Little of even that work had been carried out before the leaseexpired and Fletcher Steel vacated the premises. As best as we can tell, Fletcher Steelchose not to carry out repair works itself so as to avoid the disruption to its use of thepremises doing so would have inevitably involved.[5] Following the expiry of the lease, from September 2016 to June 2017 Gamaundertook extensive repair work, incurring costs of some $1.75 million (plus GST) indoing so, which it claimed from Fletcher Steel. Fletcher Steel accepted liability forsome $900,000 (plus GST) of that amount. It denied liability for the balance, sayingthat the work undertaken by Gama went beyond and/or cost more than that which itwas required to pay for. That dispute was arbitrated.[6] Before the arbitrator, Gama succeeded in part and was awarded a further sumof some $320,000 (plus GST), which Fletcher Steel paid.[7] Gama now says the arbitrator was wrong not to award it the full amount itclaimed due to the erroneous way he understood and applied the relevant legalprinciples, in particular those found in the case of Joyner v Weeks.11 Joyner v Weeks [1891] 2 QB 31 (CA).[8] On that basis Gama sought leave from the High Court in terms of cl 5(1)(c) ofsch 2 of the Arbitration Act 1996 to appeal various aspects of the Award to theHigh Court. The High Court declined that application (the High Court leavedecision).2 The High Court subsequently declined Gama's application for leave toappeal the High Court leave decision to this Court.3 Finally, this Court granted Gamaspecial leave to appeal the High Court leave decision to this Court.4 In doing so, itformulated the legal questions by reference to which that appeal was to be determinedin the following way:5(a) Did the arbitrator err in finding that the rule in Joyner v Weeks precludesrecovery of costs reasonably incurred in mitigation?(b) If yes, which party bears the onus of proving the reasonableness of thecosts incurred in mitigation?(c) In all the circumstances, did the arbitrator err, when considering thereasonable and proper amount required to put the premises into the stateof repair in which they ought to have been left, in failing to have regardto the prevailing circumstances at the time the lessor undertook therepair work?[9] In argument, and as we explain below, it became apparent that distillation ofthe legal questions involved was not one which necessarily conformed to thearbitrator's legal errors as conceptualised by Gama. Thankfully, little now turnson that.2 The Gama Foundation v Fletcher Steel Ltd [2021] NZHC 633, (2021) 22 NZCPR 161.3 The Gama Foundation v Fletcher Steel Ltd [2021] NZHC 2514.4 The Gama Foundation v Fletcher Steel Ltd [2022] NZCA 314. This Court's decision inSaltburn Holdings Ltd v Penrose Leasehold Ltd [2019] NZCA 127 provides a helpful explanationof the procedural implications of sch 2 of the Arbitration Act 1996.5 At [8].AnalysisOverview[10] In this judgment we first set out the principles governing grants of leave by theHigh Court pursuant to cl 5 of sch 2 of the Arbitration Act. We then summarise ourunderstanding of the rule in Joyner v Weeks, including as considered by this Court inMāori Trustee v Rogross Farms Ltd.6 Having done so we set out how that rule aroseand was addressed in the Award. Finally, we summarise the basis upon which theHigh Court declined leave to appeal the Award.[11] Against that background, and applying the relevant principles in light of theparties' submissions, we assess and dismiss Gama's appeal.Schedule 2, clause 5: leave to appeal arbitral awards[12] Clause 34 of sch 1 of the Arbitration Act limits recourse to the courts againstarbitral awards to timely applications to have an award set aside on specified grounds.Notwithstanding, cl 5(1) of sch 2 provides for appeals on any question of law arisingout of an award in three circumstances:(a) if the parties have so agreed before the making of the award;(b) with consent given after the making of the award; and(c) with the leave of the High Court.[13] Clause 5(2) then stipulates the High Court is not to grant such leave "unless itconsiders that, having regard to all the circumstances, the determination of thequestion of law concerned could substantially affect the rights of 1 or more ofthe parties".6 Māori Trustee v Rogross Farms Ltd [1994] 3 NZLR 410 (CA).[14] We adopt with gratitude the following summary of the relevant principlesarticulated by Osborne J in the High Court leave decision:7[9] As explained by the Court of Appeal in Gold and ResourceDevelopments (NZ) Ltd v Doug Hood Ltd (Doug Hood), the pre-condition incl 5(2) is designed to ensure disputes will not be referred to the High Court if,as between the immediate parties, the matter is largely academic.8[10] The Court further explained, once the cl 5(2) precondition is met,there remains a discretion whether leave to appeal should be granted which isto be exercised by the court in a disciplined way.9[11] The Court set out and discussed eight (non-exhaustive) considerationswhich should be taken into account in the circumstances of a particular case,explaining that they are guidelines, rather than governing criteria.10The head-note to the report accurately summarises the considerationsidentified by the Court:11(1) Where the question was a one-off point and of little precedentvalue the Court would not grant leave unless there were verystrong indications of an error. Where the question was ofprecedent value the lower standard of a strongly arguable casethat an error existed would be sufficient. Where conflictingdecisions existed on the point in question this would weigh infavour of granting leave. This first consideration was themost important.(2) If the question of law under consideration was the very reasonfor the arbitration this would weigh against exercising thediscretion. Conversely where the question of law emergedincidentally during the arbitral process leave would be morereadily granted.(3) Where the arbitrators were legally qualified it would be moredifficult to obtain leave to appeal the arbitral decision on aquestion of law.(4) Where the dispute was of great significance to the parties thiswould weigh in favour of exercising the discretion.(5) Where a very substantial amount of money was involved itmight be somewhat easier for the parties to obtain leave.7 The Gama Foundation v Fletcher Steel Ltd, above n 2.8 Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA)[Doug Hood] at [11].9 At [54].10 At [54].11 At 318–319.(6) Where the likely amount of delay consequent on grantingleave was disproportionate to the significance of the dispute,or if the issue was urgent, the discretion was less likely to beexercised.(7) If the parties had agreed that the arbitral award was final this,while not determinative, would weigh against the exercise ofthe discretion.(8) If the dispute was of an international nature and the partieshad expressly opted in to cl 5 (the appeal provisions of theArbitration Act 1996, Second Schedule) this would weigh infavour of exercising the discretion (see para [54]).[15] We proceed accordingly.The Rule in Joyner v Weeks[16] Joyner v Weeks involved a claim by a lessor against a lessee for the lessee'sfailure to put the leased premises in repair at the expiry of the lease. As matters hadtranspired, two years prior to that expiry the lessor had re-leased the premises uponthat expiry. It did so on terms that required it to substantially alter the property.Accordingly, it had not and would not ever incur the cost of the lessee's requiredrepairs and, arguably therefore, had suffered no loss as a result of the lessee's breach.[17] The claim was referred for trial to an official referee. The referee awarded thelessor nominal damages (one farthing) only, accepting the lessee's contention no losshad been caused. The lessor moved to set aside the referee's judgment and forjudgment in its favour or for a new trial.[18] The Divisional Court found, contrary to the referee's finding, the fact thatthe lessee's repair obligations, and their associated costs, had not and would not bemet by the lessor did not preclude the lessor's claim for actual damages.[19] The question became one of quantum. The Court was not persuaded the costof repairs was the appropriate measure of damages. Rather in its view the bettermeasure was the diminution in value of the demised premises occasioned by the failureto repair, but not exceeding the cost of doing the repairs. On that basis it set asidethe referee's judgment and ordered a new trial on the quantum issue.[20] The defendant lessee appealed, and the plaintiff lessor cross-applied forjudgment to be entered in its favour for £70, its claim for damages before the referee.[21] The Court of Appeal first disagreed with the Divisional Court's approach to themeasure of damages. Lord Esher MR described the correct approach, which heconsidered a rule of law, as follows:12The rule is that, when there is a lease with a covenant to leave the premises inrepair at the end of the term, and such covenant is broken, the lessee must paywhat the lessor proves to be a reasonable and proper amount for putting thepremises into the state of repair in which they ought to have been left. It isnot necessary in this case to say that that is an absolute rule applicable underall circumstances; but I confess that I am strongly inclined to think that it isso. It is a highly convenient rule. It avoids all the subtle refinements withwhich we have been indulged to-day, and the extensive and costly inquirieswhich they would involve.[22] His Lordship went on to consider the contention the circumstance that thelessor had not and would not incur the cost of repairs disentitled it to damages socalculated, saying:13The rule that the measure of damages in such cases is the cost of repair, is,I think, at all events, the ordinary rule, which must apply, unless there besomething which affects the condition of the property in such a manner as toaffect the relation between the lessor and the lessee in respect to it.The question is whether there is any such circumstance in the present case.[23] Lord Esher was satisfied that was not the case. The circumstance the lessorsought to rely on arose as a result of a contract between the lessor and a third person,to which the lessee was not a party and with which he had nothing to do. At the pointof the determination of the lease between the lessor and the lessee the premises wereout of repair. The contract between the lessor and the third person could not be takeninto account: it was something to which the lessee was a stranger.14 The result wasthat there was nothing to prevent the application of the ordinary rule as to the measureof damages in such cases.[24] Lord Fry agreed.1512 Joyner v Weeks, above n 1, at 43.13 At 43–44.14 At 44.15 At 45.[25] Where a lessee defaults on repair obligations at the expiry of a lease,Joyner v Weeks therefore stands for two essentially straightforward propositions:(a) The fact the lessor has not and will not incur the cost of performingthe lessee's repair obligations does not preclude the lessor fromclaiming damages.(b) The measure of those damages is the usual contractual measure, namelywhat the lessor claiming for breach of contract proves to be a reasonableand proper amount for putting the premises into the state of repair inwhich they ought to have been left by the lessee.[26] The rule in Joyner v Weeks has been long subject to criticism on the basis itsapplication resulted in windfall gains by a lessor. For a period the status of the rulewas uncertain. In the United Kingdom its significance was limited by legislativeintervention.16[27] In 1991 the New Zealand Law Commission recommended the abolition ofthe rule.17 Nonetheless, in Māori Trustee v Rogross Farms Ltd this Court reaffirmedthe application of the rule in New Zealand.18 As in Joyner v Weeks, the lesseeRogross Farms delivered the leased land at the end of the term in breach of its repaircovenant. The lessor, the Māori Trustee, claimed damages of $19,570, the cost ofremedying the breach. Given the terms of the breached covenants, however, the lessorcould not persuade the High Court the lessee's breach had caused any diminution inthe value of the leased land.19 On that basis Rogross Farms argued the Māori Trusteeshould be awarded nominal damages only. The High Court found that it was not boundby the Court of Appeal's judgment in Joyner v Weeks: rather, agreeing with the16 Section 18(1) of the Landlord and Tenant Act 1927 (UK) provides:Damages shall in no case exceed the amount (if any) by which the value of the reversion(whether immediate or not) is diminished owing to the breach ; and in particular nodamage shall be recovered for [such] a breach , if it is shown that the premises, in whateverstate of repair they might be, would at or shortly after the termination of the tenancy havebeen or be pulled down, or such structural alterations made therein as would render valuelessthe repairs covered by the covenant or agreement.17 Law Commission Aspects of Damages: The Rules in Bain v Fothergill and Joyner v Weeks(NZLC R19, 1991).18 Māori Trustee v Rogross Farms Ltd, above n 6.19 An outcome this Court described as "inherently unlikely" at 412.Queen Bench decision below, it concluded the proper measure of loss was thediminution, if any, in the value of the lessor's reversion.20 No diminution having beenproved, the lessor was awarded $10 in nominal damages only.[28] On appeal this Court followed the approach in Joyner v Weeks and awardeddamages to the lessor equal to the claimed costs remedying the breach. The criticismsof the rule were examined and discussed by Tipping J. The Court considered therationale for the rule was sound:21It should be said at the outset that the rule is not as inconsistent with generalprinciples in relation to the assessment of damages for breach of contract ashas on occasions been suggested. Damages in tort are designed to reflect whatthe plaintiff has lost by reason of the wrong. Damages in contract are designedto represent the monetary equivalent of the promised benefit which has notbeen provided. In other words, they are designed to put the injured party, asnearly as possible, and so far as money can do it, into the position he wouldhave been in if the contract had been performed.Thus, if a lessee fails to perform a covenant and the term has expired a sum ofmoney must replace the performance of the covenant. That sum of moneywill ordinarily equate the cost to the lessor of having the covenant performed.It is when the lessor is unable or does not wish, for whatever reason, to havethe covenant performed that the difficulties said to be inherent in the rule arise.It follows that there is justification for holding that the rule is not absolute.But on a prima facie basis the rule fits comfortably with the purpose ofdamages for breach of contract.[29] Given the above, it was suggested there was a "strong case" for the retentionof the rule on a prima facie basis "if only because people who have agreed to dosomething should, prima facie at least, be required to do it".22 The position inNew Zealand law is therefore as stated by Tipping J as follows:23The rule in Joyner v Weeks is not an absolute rule. It is, however, theprima facie rule which will be applied unless the lessee can show bysufficiently cogent evidence that in both the short and the long term the lessorwill definitely suffer no loss or will suffer a loss which can definitely beassessed at less than the prima facie measure.20 Māori Trustee v Rogross Farms Ltd [1991] 3 NZLR 369 (HC).21 Māori Trustee v Rogross Farms Ltd, above n 6, at 418–419.22 At 420.23 At 420.[30] In Northash Ltd v Zeff Farms Ltd, when declining special leave to appeal tothe High Court an arbitral award concerning damages payable for breach of a lessee'scovenant to maintain a farm in good condition, the Court emphasised that approach.24The position in New Zealand was, therefore different to that in jurisdictions whereJoyner v Weeks is regarded as an absolute rule, that is a rule of law.25The rule in Joyner v Weeks as raised before and applied by the arbitrator[31] During the arbitration the parties had differing views as to the meaning andeffect for their dispute of the principles in Joyner v Weeks. That difference in viewresponded to Gama's characterisation of the steps it had actually taken to repair thepremises as "mitigation" of the damage caused by Fletcher Steel's breach.[32] On that basis Gama argued the normal rules applying in actions for damagesfor breach of a contract (including the rule that cost incurred as a result of actionreasonably taken in the course of attempting to mitigate the damage suffered as a resultof the other party's breach of contract is recoverable) applied, with only onemodification. That was under the Joyner v Weeks principle a landlord is entitled torecover damages for breach of a tenant's obligations of repair and maintenance evenin respect of repairs which the landlord does not carry out.[33] Fletcher Steel's position was that the effect of Joyner v Weeks was far morewide-reaching. Whilst the decision did provide for damages for repair work notcarried out, it placed a heavier burden on the landlord overall in that it held that thelandlord must prove, in respect of each item of its claim, not only breach andexpenditure (or, in the case of work not carried out, possible expenditure) but that theexpenditure claimed was necessary and proper. As a consequence, Gama could notrely on the rule normally applying that cost incurred as a result of action reasonablytaken in the course of attempting to mitigate the damage suffered as a result of theother party's breach of contract is recoverable.24 Northash Ltd v Zeff Farms Ltd [2022] NZCA 471, [2023] 2 NZLR 202 at [36].25 At [43].Analysis[34] The arbitrator did not consider that Joyner v Weeks was limited in the wayargued by Gama. In summary, the arbitrator:(a) recognised as a general rule of contractual damages that costs incurredby a plaintiff acting reasonably to mitigate their damages arerecoverable;(b) found that general rule did not apply in circumstances covered byJoyner v Weeks; and, accordingly,(c) found the onus was on Gama to establish the costs it claimed for repairworks (whether carried out by it or not) were the properly assessed costsof the repair work which Fletcher Steel was liable to perform under thelease but which it had failed to do.[35] Gama now says the arbitrator's first two conclusions were wrong.Accordingly, it should have been for Fletcher Steel to prove that the repair costsclaimed by Gama were unreasonable, not for Gama to prove they represented thedamages it was entitled to for the breach by Fletcher Steel of its covenant to repair.[36] In the High Court Osborne J was satisfied those propositions were not arguablein the context of the Award. We agree. Although the application of the principles ofmitigation of damages may in certain circumstances affect claims under the primafacie approach found in Joyner v Weeks, that is not the case here. Our reasons follow.[37] A classic statement of the contractual principle of mitigation is found inBurrows, Finn and Todd on the Law of Contract in New Zealand:26The law does not allow a plaintiff to recover damages to compensate for losswhich would not have been suffered if he or she had taken reasonable steps tomitigate the loss. Whether the plaintiff has failed to take a reasonableopportunity of mitigation is a question of fact dependent upon the particular26 Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract inNew Zealand (7th ed, LexisNexis, Wellington, 2022) at 881 (footnotes omitted).circumstances of each case. The burden of proving such failure rests upon thedefendant.[38] The damages payable by Fletcher Steel to Gama crystallised on the date of theexpiry of the lease. The state of the leased premises at that date determined the repairsrequired, so that the quantum of damages for the breach of the repair covenantreflected the cost of those repairs at that time. Despite what Gama claims, the stepsGama took were not in mitigation of those damages. Those steps may have mitigatedconsequential losses: for example, if the premises were not lettable without the repairsbeing done, and the repairs were within Gama's power to do within a reasonable periodof time, it would be open for Fletcher Steel to say that delays by Gama in carrying outthe repair work reflected a failure to mitigate. Gama did, in fact, claim forconsequential lost rent. The arbitrator concluded that — because the scale andconfiguration of the property was not suitable for commercial tenants in theChristchurch — Gama had not proved it would have been able to re-lease the propertyduring the period in which the repairs took place. Given the above, the principles ofmitigation as raised in the questions of law proposed by Gama, and their effect ononus, were not material to the dispute between Gama and Fletcher Steel.[39] The arbitrator summarised the rule of mitigation normally applying as beingthat the cost incurred as a result of action reasonably taken attempting to mitigatedamage was recoverable. Given that the obligation of mitigation is to reduce damagesotherwise flowing from a breach, a separate focus on the recoverability of costsincurred in mitigation is perhaps a little counterintuitive. What can be said is that inthe ordinary course the benefit of mitigation to which a defendant is entitled is net ofthe plaintiff's costs of achieving that mitigation. Further, and what Gama may havehad in mind, is the principle reflected in the following comments of Burrows, Finnand Todd on the Law of Contract in New Zealand:27It is implicit in the principle of mitigation that if mitigating steps are in factreasonably taken, and additional loss or damage results notwithstanding thereasonable decision to take those steps, then that extra loss is recoverable inaddition to any other loss.27 At 883 (footnote omitted).[40] That approach would appear to reflect the general proposition that"[t]he burden which lies on the defendant of proving that the plaintiff has failed in hisor her duty of mitigation is by no means a light one, for this is a case where a partyalready in breach of contract demands positive action from one who was ofteninnocent of blame."28[41] The 7th edition of Dilapidations: The Modern Law and Practice containshelpful commentary on the relevance of the principles of mitigation in cases affectedby the Joyner v Weeks principles, remembering the different status of those principlesunder New Zealand law.29[42] The starting point is the general principle of damages that where a defendanthas the option of performing the contract in alternative ways, damages must beassessed on the assumption that he will perform it in the way most beneficial to himselfand not in that most beneficial to the claimant (the so-called "minimum obligation"principle).30 So, the authors explain, where there are a number of different ways ofperforming the covenant to repair, damages will, in the ordinary case, be assessed atcommon law by reference to the cost of the lesser, and cheaper, work. That principleonly applies where the lesser work constitutes a performance of the covenant: if it doesnot, it is irrelevant for the purposes of assessing damages.31 Further, the text suggeststhat where work which produces a lower specification building will in fact cost morethan work which results in a better building (and so is not work which the tenant wouldrealistically be likely to have done had it elected to comply with its obligations) thecheaper, albeit higher specification, work will be the relevant work for the purposes ofthe common law measure of damages.32[43] The authors then go on to consider the application of those principles wherethe landlord carries out remedial works following lease expiry, as was the case here.They confirm the straightforward application of the principle in Joyner v Weeks meansthat where a landlord elects to limit the work and not completely remedy the relevant28 At 882.29 Nicholas Dowding, Kirk Reynolds and Alison Oakes Dilapidations: The Modern Law andPractice (7th ed, Sweet & Maxwell, London, 2022).30 At 822.31 At 822–823.32 At 824.disrepair the landlord remains entitled to the reasonable cost of the remedial works forwhich the tenant was liable under the covenant.33[44] The question of mitigation is discussed in that context:34Where the works carried out by the landlord in fact remedy the disrepair,the principles of mitigation may result in his claim being limited to the costactually incurred, even where the effect of (for example) the covenant againstalterations is that the tenant could not itself lawfully have carried out thatwork.[45] They refer to the example of that approach found in Sunlife Europe PropertiesLtd v Tiger Aspect Holdings Ltd where air handling units were in disrepair.35 Even ifthose units could have been repaired, very extensive work would have been required.The landlord in fact replaced them at a lower cost. It was held that the lower cost wasthe amount recoverable. The Judge reasoned:36 [A]lthough the prima facie measure of damage is the cost of [the repairwork], [the landlord] has mitigated its loss by adopting a less expensivesolution. The cost of this alternative solution therefore represents the amountrecoverable. It is irrelevant, as [counsel] appears to contend, that the solutionactually adopted in order to mitigate the loss is not one that would have beenopen to [the tenant]. However, [the tenant] is entitled to take the benefit of themitigation.[46] Sunlife went on appeal,37 but not on the issue of the Judge's assessment ofdamages at common law. The approach has, moreover, been the subject of forcefulacademic criticism which argues the general law of mitigation has no part to play indilapidation cases.38[47] That approach to mitigation has not, we acknowledge, been considered inNew Zealand. There may, therefore, be a live issue as to its application inNew Zealand in an appropriate case. But this is not that case.33 At 824.34 At 824 (footnote omitted).35 Sunlife Europe Properties Ltd v Tiger Aspect Holdings Ltd [2013] EWHC 463 (TCC),(2013) 147 Con LR 105.36 At [158].37 Tiger Aspect Holdings Ltd v Sunlife Europe Properties Ltd [2013] EWCA Civ 1656.38 Nic Taggart "Darkness on the edge of town? Or is the calculation of consequential losses indilapidation claims harder than it looks? (Part 1)" (2016) 4 (3) Journal of Building Survey,Appraisal & Valuation 130 at 137–139.[48] As the Sunlife decision explains:39 [I]f the cost actually incurred by the landlord is greater than the cost ofother work which would be sufficient , then the landlord is limited torecovering the costs of the latter. [T]he appropriate test is not whether the landlord has acted reasonably incarrying out remedial works, but rather whether what the landlord has doneby way of repair goes no further than was necessary to make good the tenant'sbreaches of covenant.[49] The authors of Dilapidations: The Modern Law and Practice comment:40However, the fact that the works carried out by the landlord go further thanthe works for which the tenant was liable does not mean that the tenant escapesliability for anything. What it means is that the sum recoverable at commonlaw is limited to the reasonable cost of the repair works which the tenantshould have carried out.[50] Those comments are a complete answer to the legal issue Gama seeks toraise here. Indeed it would be strange if that were not the case. Gama, unlike thelessor in Sunlife, was not facing a contest between its claim for damages and the lesser,mitigated, amount it had actually spent. Rather Gama claimed — on the basis of whatit termed mitigation — a presumptive entitlement to reasonable costs exceedingprovable damages.[51] The approach the arbitrator actually took in the Award, albeit arrived at withreference to Joyner v Weeks by a slightly different route, is on all fours with thedecision in Joyner v Weeks, this Court's decision in Rogross Farms, the comments inDilapidations and the analysis in Sunlife. That is, the amounts the arbitrator awardedGama were, on the evidence before him, the amounts he found to be the costs of therepair work Fletcher Steel had been obliged to carry out but had not. The onus Gamacomplained of simply reflects the onus on a plaintiff to prove its damages.[52] In argument before us Gama suggested the occasion of the dispute whichfeatured in the Northash decision evidenced a need for further clarification here of the39 Sunlife Europe Properties Ltd v Tiger Aspect Holdings Ltd, above n 35, at [43] and [45].40 Dowding, Reynolds and Oakes, above n 29, at 825 (footnotes omitted).Joyner v Weeks, prima facie, approach.41 We disagree. As our analysis shows,Gama's assertion that the approach they suggested to mitigation, in circumstancessuch as these, was the usual approach, is misplaced.[53] Further, many of the relevant factors identified in Doug Hood point againstleave. The arbitrator deciding the Award was highly qualified: a King's Counsel anda former Master of the High Court. He has recently retired. If leave were granted bythis Court, and if then the High Court found in favour of Gama, a new arbitrator wouldneed to be appointed. The process would begin again. The lease ended in 2016.The Award was issued in 2020. The amount of money on the line is not verysubstantial in the context of a commercial lease such as this one. A decision to grantleave here would cut across the clear legislative policy underpinning theArbitration Act. As this Court in Doug Hood made clear:42 [O]ur Parliament, like those in the United Kingdom and Australia, haschosen to favour finality, certainty and party autonomy [Parliament]intended to encourage arbitration as a dispute resolution mechanism. Byenacting a statute with the express purpose of redefining and clarifying thelimits of judicial review of arbitral awards, Parliament has made clear itsintention that parties should be made to accept the arbitral decision where theyhave chosen to submit their dispute to resolution in such manner. It plainlyintended a strict limitation on the involvement of the Courts where this choicehas been made.[54] Gama may be unhappy with the outcome of its arbitration. However it is anarbitration Gama chose to undertake according to the contract it and Fletcher Steelagreed to. The benefits and risks of arbitration are well known.Result[55] The appeal is dismissed.[56] The appellant must pay the respondent costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Corcoran French, Christchurch for AppellantMeredith Connell, Auckland for Respondent41 Northash Ltd v Zeff Farms Ltd, above n 24.42 Doug Hood, above n 8, at [52].