Defence claimed written agreement was conditional upon securing funding
The New Zealand Supreme Court has refused leave to appeal against the denial of an applicant’s claim for payment for plans, proposals, and consultancy services he provided to the respondent for a proposed infrastructure project in Papua New Guinea.
The applicant in Scully v Holland [2026] NZSC 84 received no payment for his work from 2012–16. In High Court proceedings, he claimed payment under an oral contract allegedly formed in December 2012 or a written project manager’s contract signed in May 2013.
In her defence, the respondent alleged that there was no binding agreement, as any written agreement was conditional upon her receiving project funding from Papua New Guinea, which was not forthcoming.
The High Court dismissed the applicant’s claim upon essentially agreeing with the respondent’s arguments.
The Court of Appeal dismissed the applicant’s appeal. The appeal court saw no oral contract based on the telephone conversations and surrounding circumstances, including:
The appeal court found no errors in the High Court’s findings that:
The appeal court also saw no errors in the High Court’s failure to consider whether there had been a waiver of the special conditions and its reference to difficulties regarding enforceability, given the contract’s express provision that it was subject to Papua New Guinean law.
The appeal court determined that the circumstances did not give rise to a misrepresentation claim under s 35 of the Contract and Commercial Law Act 2017.
Lastly, the appeal court rejected the applicant’s request for leave to amend his pleading to assert quantum meruit and his argument that the late knowledge provisions would apply due to the respondent’s alleged fraud.
The applicant applied for leave to appeal. In his proposed appeal, he sought to raise the doctrine of waiver and these other legal issues:
The applicant also contended that the respondent was deceptive and that he experienced reputational damage due to being blamed for the fraudulent alteration of the contracts.
The Supreme Court of New Zealand dismissed the applications for leave to appeal and file reply submissions. The Supreme Court found it unnecessary to receive the applicant’s reply submissions.
The Supreme Court saw no apparent miscarriage of justice in the civil context, no question of general or public importance, and no question of general commercial significance. The Supreme Court ruled that hearing the proposed appeal would not serve the interests of justice.
The Supreme Court explained that resolving the proposed appeal would depend on the particular facts. The Supreme Court pointed out that the Court of Appeal of New Zealand comprehensively reviewed the High Court of New Zealand’s factual findings.
The Supreme Court saw real difficulties with the applicant’s arguments regarding the legal principles, given the lower courts’ concurrent findings on critical facts.
Lastly, the Supreme Court did not order costs, as the applicant was receiving legal aid.
