IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2670
[2021] NZHC 2558
BETWEEN DENESE ROSEMARY BATES
Plaintiff
AND
AUCKLAND COUNCIL
First Defendant
O’HAGAN BUILDING CONSULTANTS LIMITED
Second Defendant
Hearing: 9–13 March 2020, 16–19 March 2020, 23 March 2020, 21–22
September 2020
Counsel:
T Rainey and J Heaney for the Plaintiff
S C Price, J K Wilson and R Nolan for the First Defendant A L Holloway and M A Karlsen for the Second Defendant
Judgment:
29 September 2021
JUDGMENT OF GWYN J
This judgment was delivered by me on 29 September 2021 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
Solicitors:
Cameron Flemming Associates Limited, Auckland MinterEllisonRuddWatts, Auckland
Wotton Kearney, Auckland
BATES v AUCKLAND COUNCIL [2021] NZHC 2558 [29 September 2021]
TABLE OF CONTENTS
Introduction [1]
The parties [4]
The claims [7]
Background [12]
Discovery the house is a leaky building [12]
Consent process for the remedial works [18]
The remedial works [25]
Discovery of current issues [37]
The evidence at trial [40]
Scene view [57]
THE CLAIM AGAINST THE COUNCIL [58]
Did the Council owe a duty of care to Mr Heaney and Ms Bates? [62]
Ms Bates’ position [67]
The Council’s position [70]
Discussion [80]
Did the Council breach its duty to Mr Heaney and Ms Bates? [86]
Particular 2 – calculations or other verification of subfloor compliance with
E2/AS1 [87]
Discussion [92]
Particular 1 – polythene sheet to be laid on subfloor [97] Discussion [106]
Particular 3 – calculations or other verification for O’Hagan amendment in July 2007 [111]
Discussion [120]
Particular 5 – vapour barrier [125]
Particular 4 – failure to identify that there was inadequate provision for subfloor ventilation provided for in drawings for the building consent and the amended building consent [127]
Discussion [130]
Particular 6 – alleged failure to observe during inspections that the proposed ventilation holes had not been installed [132]
Discussion [142]
“Superseded” [148]
Proposed ventilation holes not installed [156] Particular 7 – alleged failure to observe during inspections that there was inadequate provision for subfloor ventilation [166]
The issue of the Code of Compliance Certificate [169] Discussion [171]
Was the Council’s negligence a material cause of, or contributor to, the damage to the house? [172]
Discussion [177]
Defect/damage [177]
Causation [192]
Different course of action [197]
Other causes [199]
Conclusion on negligence claim against the Council [205]
THE CLAIM AGAINST O’HAGAN [206]
Did O’Hagan owe a duty of care to Mr Heaney and Ms Bates? [208]
Ms Bates’ position [208]
O’Hagan’s position [214]
Discussion [217]
Did O’Hagan breach its duty to Mr Heaney and Ms Bates? [218] The removal and replacement of the subfloor timbers [219] Discussion [221]
The issue of the PS4 [230]
Discussion [233]
Design advice and obtaining Council approval for Detail 12 in July 2007 [242] Obtaining the amended building consent (ABA-62145B) [245] Was O’Hagan’s negligence a material cause of, or contributor to, the damage to the house? [247]
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