New Zealand Case Law: Decisions & Judgments

Topic

Retention monies

Legal area

Court

18 Apr 2023

WAHAROA LAND HOLDINGS LIMITED v WAHAROA INDUSTRIAL PARK LIMITED [2023] NZHC 819

Citation

[2023] NZHC 819
Court

High Court

The court refused the declarations because WLHL failed to prove WIPL had not carried out the replacement or removal works to the required standard and the stakeholder letter was unambiguous so no declaratory clarification was necessary; the matters complained of were hypothetical or lacked practical utility and the only established breach was failure to provide an engineer's certificate for which retention monies had been paid, so no damages were awarded.
10 Sept 2020

FEDERAL COMMERCIAL CONSTRUCTION LTD v LEADING EDGE FABRICATION LTD [2020] NZHC 2352

Citation

[2020] NZHC 2352
Court

High Court

The Court held that there was a genuine and substantial dispute as to the interpretation of clause 1.16 of the subcontract concerning when the retention sum fell due (meaning of 'all outstanding requirements' and the trigger date for release). Because that threshold was met the statutory demand was set aside.
8 Apr 2020

OORSCHOT v CORBEL CONSTRUCTION LIMITED (in liq) [2020] NZHC 723

Citation

[2020] NZHC 723
Court

High Court

The Court appointed the liquidator, Andrew Oorschot, as receiver and manager of the Retention Fund; only subcontractors with calculated and (partly) transferred retentions and subcontractors with released but not paid retentions have claims on the fund; the Retention Fund is to be distributed pro rata (net of a pro rata share of administration costs) as at the date of liquidation; the receiver may deduct reasonable costs and is authorized to pay legal costs of $18,698.64 from the fund without further approval; interest is not payable unless and until all valid non‑interest claims are paid in…
7 Jul 2017

DHC ASSETS LIMITED v ARNERICH [2017] NZHC 1460

Citation

[2017] NZHC 1460
Court

High Court

Summary judgment was declined because the defendant established a tenable defence that material factual issues exist — notably whether Vaco acquired the land and liabilities beneficially or as trustee (meaning proceeds were not company assets) and whether the retentions were properly payable — such that there is a real question to be tried and the matter requires full hearing.
4 Nov 2015

SCHICK CONSTRUCTION AND CARTAGE LTD v AUCKLAND COUNCIL & ORS [2015] NZHC 2722

Citation

[2015] NZHC 2722
Court

High Court

The application was dismissed: the plaintiff's unexplained delay in serving the proceedings was serious and criticised but did not justify dismissal or stay because the claim was filed before limitation expired, r5.72 contains no automatic sanction, responsibility may lie with advisers, and the overall interests of justice favored allowing the claim to proceed; further, the fourth to sixth causes of action concern stormwater liabilities not plainly within the Auckland Transport vesting under cl12 and therefore could not be struck out on the pleadings, and the seventh cause (retentions under t…
10 Feb 2010

79 MANNERS STREET LIMITED V BJ PYE SHEET METALS LIMITED HC WN CIV-2008-485-1907

Citation

openlaw-38fd7925_74f9_41b9_90d8_c8642c330313.pdf
Court

High Court

The statutory demand was set aside because the applicant established a fairly arguable and substantial dispute about entitlement to the sums claimed (including entitlement to retention monies) and showed a fairly arguable counterclaim that could exceed the demand; although a statutory demand may constitute an "action" for limitation purposes, the decisive ground was the genuine dispute and counterclaim under s290(4)(a) and (b).
8 Oct 2009

OROPI PARK LTD V A & R BETHLEHEM HEIGHTS LTD HC TAU CIV 2009-470-000287

Citation

openlaw-f116a765_6c24_43ab_8794_a27468701ec6.pdf
Court

High Court

The settlement deed and construction contract, read in their commercial background, required defects be 'shown' to be caused by A & R and for A & R to be given opportunity to remedy before retention funds could be accessed; Oropi failed to show causation or follow the deed's procedures; clause 5 obliged payment of the final certified amount and the contract and deed precluded the equitable set-off alleged; accordingly A & R was entitled to summary judgment for the certified sum and for the retained funds paid out to a third party together with interest.
29 Feb 2008

SHEPHARD AND ANOR V ORCHARD NZ TRUSTEES LIMITED AND ANOR HC WN CIV-2008-485-197

Citation

openlaw-d412c9f4_d187_4dc7_b4fc_7861660e5738.pdf
Court

High Court

The Retained Monies are held by Duncan Cotterill as stakeholder on trust for both Orchard and Dermac according to the DA; Dermac (and its liquidators) do not have an unfettered proprietary claim making the monies assets of Dermac for distribution to creditors. Orchard has the primary entitlement to drawdowns once it validly exercises its contractual rights and the DA's drawdown and authorisation process (including dual written authorisation) is complied with; Dermac is entitled to any surplus on practical completion. Interest entitlement is governed by clause 3.19 and accrues separately and o…
13 Feb 2006

PARKER CONSTRUCTION MANAGEMENT (NZ) LIMITED V ADEN ELECTRICAL LIMITED HC WN CIV-2005-485-1334

Citation

openlaw-e2d91ef3_2049_4558_b8ce_26f1518b5800.pdf
Court

High Court

The plaintiff discharged the onus to show there is a genuine and substantial dispute as to the remaining sums claimed in the statutory demand (principally retentions under the Scots College contract and the Evans Bay retention), and because the disputed amounts may not be presently due the statutory demand dated 16 June 2005 is set aside.