Aldridge v Holloway - [2021] NZHC 1382

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-659

[2021] NZHC 1382

BETWEEN
TIMOTHY JAMES ALDRIDGE, MICHELLE PATRICIA ALDRIDGE and ALDRIDGE TRUSTEE SERVICES
LIMITED as trustees of the ALDRIDGE FAMILY TRUST

Plaintiffs

AND

JAMES ROBERT HOLLOWAY

First Defendant

AND

MBSS LIMITED trading as MAXRAFT Second Defendant

Hearing: 25 May 2021

Appearances:

T J Mackenzie for Plaintiffs

No appearance for Second Defendant
N P Gillies and V Bortsova for Second Defendant

Judgment:

14 June 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 14 June 2021 at 3 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 14 June 2021

ALDRIDGE v HOLLOWAY [2021] NZHC 1382 [14 June 2021]

[1] The second defendant in this proceeding, MBSS Limited, which trades as MAXRaft (MAXRaft), has applied to strike out the only cause of action brought against it by the plaintiffs, the trustees of the Aldridge Family Trust, or for summary judgment as a defendant.

Summary of claim

[2] In late 2016, the plaintiffs were planning on building a holiday house at Castle Hill, which is about halfway between Christchurch and Arthur’s Pass. The Aldridges engaged an architect to design the house.

[3] MAXRaft is a specialist flooring contractor. It provides insulated concrete slab floors for both residential and commercial use. A MAXRaft floor is made up of interlocking polystyrene blocks over which concrete is poured to form an insulated slab.

[4] In this case, the plaintiffs intended that the floor would also have underfloor heating. The underfloor heating would sit on top of the polystyrene slabs by way of a hose or pipe laid across the surface of the polystyrene slabs through which hot water is pumped. Concrete is then poured on top of the polystyrene slab, encasing the heating element.

[5] The plaintiffs’ primary complaint is that the concrete slab was poured without the underfloor heating being installed. The building company engaged to construct the house, Holloway Builders Ltd (Holloway Builders), is in liquidation. The first defendant, Mr James Holloway, was the sole director of that company and he took no part in the hearing of the second defendant’s applications.

[6] MAXRaft was a sub-contractor to Holloway Builders. There is a written contract between the plaintiffs and Holloway Builders and a written sub-contract between Holloway Builders and MAXRaft.

[7] As there is no contract between the plaintiffs and MAXRaft, the plaintiffs’ only cause of action against MAXRaft is in negligence. The only issue for determination in this application is whether there is a reasonably arguable case that MAXRaft owed

a duty of care to the plaintiffs. If it is not reasonably arguable that a duty was owed, then the application to strike out should be granted.

[8] When it was discovered that the underfloor heating had not been installed, Holloway Builders added a topping slab to the existing slab. The underfloor heating was contained in the new topping slab. Unfortunately, the topping slab has cracked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 1382
Decision Date: 14 June 2021

CaseChat Overview and Summary

Aldridge v Holloway is a case concerning a dispute over the installation of an underfloor heating system in a residential building project. The plaintiffs, the Aldridge Family Trust and its trustees, sought damages from the defendants, MBSS Limited (trading as MAXRaft), a specialist flooring contractor, and James Holloway, the director of Holloway Builders Ltd, for the failure to install the underfloor heating system as per the design. Holloway Builders, the general contractor, is now in liquidation, and James Holloway did not participate in the hearing. MAXRaft, a sub-contractor to Holloway Builders, denied liability and applied to strike out the plaintiffs' claim against it or, alternatively, for summary judgment, arguing that it did not owe a duty of care to the plaintiffs. The court considered the application, focusing on whether there was a reasonably arguable case that MAXRaft owed a duty of care to the plaintiffs. The court examined the relationship between the parties, the nature of the loss, and the contractual obligations. It concluded that there was no duty of care owed by MAXRaft to the plaintiffs, and the claim against MAXRaft was struck out. The court noted that the plaintiffs had freely chosen to contract with the head builder and that their remedy, if any, lay within the contractual chain. The court found that imposing a duty of care in tort would cut across the agreed contractual structuring of the allocation of liability and risk. The plaintiffs' claim against MAXRaft was dismissed, and the defendants were awarded costs on a 2B basis for the application and the proceeding to date, along with disbursements as fixed by the Registrar.

Orders