Bates v Auckland Council - [2021] NZHC 2558

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“Superseded”  [148]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]

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 2558
Decision Date: 29 September 2021

CaseChat Overview and Summary

The plaintiff, Denese Rosemary Bates, brought proceedings against the Auckland Council and O’Hagan Building Consultants Limited, alleging that both defendants were negligent in relation to remedial work carried out on a house that Ms Bates and her late husband, David Heaney, had built. Ms Bates alleged that the remedial work was carried out in a way that caused damage to the house, which would cost in the order of $1.5 million to repair. The claim against the Auckland Council was that the Council was negligent in the grant of the building consent, in the inspection of the building work, and in the issue of a Code of Compliance Certificate. The claim against O’Hagan was that it was negligent in carrying out its contractual duties in relation to the removal and replacement of the subfloor timbers, in the issue of the Producer Statement Construction Review (PS4), in providing design advice and obtaining Council approval for Detail 12 in July 2007, and in obtaining the amended building consent. Ms Bates also pleaded claims in negligent misstatement and misleading and deceptive conduct against O’Hagan. Gwyn J found that neither the Council nor O’Hagan had breached any duty owed to Ms Bates, and therefore there could be no liability on the part of either defendant. The Court found that the Council had breached its duty of care in not inspecting for the installation of the proposed ventilation holes, but this was not a material cause of the damage to the house. Similarly, the Court found that O’Hagan did not breach its duty of care to Ms Bates, and, in any event, could not be held liable for the damage to the house. In light of these findings, the Court did not consider the affirmative defences raised by the Council and O’Hagan, or their cross-claims against each other. The Court also did not consider the scope of any remedial work to the house, or the costs of the proceeding.

Orders