Body Corporate 381372 v Heron Point Projects Limited
[2017] NZHC 597
•29 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1066 [2017] NZHC 597
UNDER the Unit Titles Act 2010 BETWEEN
BODY CORPORATE 381372
First PlaintiffMJ LORIMER and JR FLAWS as trustees of the Lorimer Family Trust
Second Plaintiffs
DONALD AND JOHN as trustees of the
Claasen Properties Trust
Third Plaintiffs……………………………/Plaintiffs continued over
AND
HERON POINT PROJECTS LIMITED Defendant
Hearing: 16 September 2016
Further memoranda/evidence : 7 and 28 October 2016;
27 January, 9 and 14 February 2017
Counsel:
DL Marriott for plaintiffs
No appearance by or on behalf of defendantJudgment:
29 March 2017
JUDGMENT OF FITZGERALD J
Body Corporate 381372 v Heron Point Projects Limited [2017] NZHC 597 [29 March 2017]
Plaintiffs continued GLADSTNE AND LANGS TRUSTEES LIMITED as trustees of the Gladstone
Trust
Fourth Plaintiffs
ROSAMOND L TORRANCE,
WL BARNES, DP CLEAL and KERRY W TORRANCE as trustees of the Rosamond Torrance Trust
Fifth Plaintiffs
KEVIN WESTNO Sixth Plaintiff
ZHONGHAI YANG Seventh Plaintiff
GREGG BEHRENS and RED BARON TRUSTEE LIMITED
Eighth Plaintiffs
CHARLOTTE ZOE DEVEREUX and DANVERS JOHN DEVEREUX as trustees of the Colyn Devereux Family Trust
Ninth Plaintiffs
GARRY RICE and JANETTE RICE Tenth Plaintiffs
PHILIP PRITCHARD and FIONA PRITCHARD as trustees of the Ambrose Family Trust
Eleventh Plaintiffs
RODERICK ELLIS Twelfth Plaintiff
HAMISH A SILLARS and JE SILLARS Thirteenth Plaintiffs
Introduction
[1] The White Heron Point apartment complex, in Parnell, was built over the period 2008 to 2009. It comprises two separate buildings, being the Hobson Apartments and the Judges Apartments. When the apartment complex was built, “Heat & Glo COSMO” gas fireplaces were installed in the units on the second and third stories of the complex. Now, a number of the owners of the units say that the fireplaces were installed incorrectly, so that any heat generated emanates into the surrounding wall cavity, making the fireplaces both unsafe and ineffective. Not surprisingly, the unit owners want their fireplaces fixed.
[2] There are thirteen plaintiffs. The first plaintiff is the Body Corporate for the apartment complex. The second to thirteenth plaintiffs are owners of the units that have allegedly problematic fireplaces.
[3] The defendant is the developer of the apartment complex, Heron Point Projects Ltd (“Heron Point”). Together, the plaintiffs sue the defendant in negligence, seeking damages of $156,000.00, this being the estimated cost of repairing the fireplaces.1
[4] The claims proceed by way of formal proof.
Pleaded factual background
[5] The plaintiffs plead that Heron Point was the developer for the complex over the period from about 2008 to 2009. Included within the construction work at the time was the installation of the fireplaces. The fireplaces in issue were only installed in the apartments on levels two and three of the buildings.
[6] The plaintiffs say the fireplaces were incorrectly and unsafely installed in their units. This incorrect installation is said to result in heat from the fireplaces
1 The claim originally sought a mandatory injunction, ordering Heron Point to carry out necessary repairs to the allegedly defective fireplaces. The amended statement of claim now proceeds by way of damages only.
going into the surrounding wall cavity, rather than into the units. The plaintiffs say this means the fireplaces do not adequately heat the rooms, and are not fit for their intended purpose. They also say the defective fireplaces pose a fire safety risk due to the overheating of the surrounding wallboards and hearths.
[7] Remediation of the defective fireplaces is said to entail removal and replacement (with a different fireplace model from the same manufacturer), along with the repair and repainting of any damage to the apartment’s structural elements, including the hearths, wallboards, and wall framing.
[8] The plaintiffs say the defendant has failed or refused to remediate the defective fireplaces. As a result, the plaintiffs will need to incur the costs and expenses of doing the remediation themselves. The scope of the repairs, and the associated costs, have been ascertained and are based on full repairs already having been carried out at one unit. The plaintiffs say that the cost of remediating all the defective fireplaces will be $156,000.00 (including GST).
Procedural background and issues
[9] This proceeding has a long procedural background. When the original statement of claim was filed on 13 May 2015, the Body Corporate was the sole plaintiff. Heron Point initially filed a statement of defence which denied all liability. However, at the first case management conference (in which only the Body Corporate participated), Heron Point was ordered to file an amended statement of defence (the first being defective, as it simply denying the various allegations made). Heron Point did not file an amended statement of defence, and has not taken any further steps in this proceeding. The matter has accordingly proceeded by way of
formal proof.2
[10] The matter first came before me as a half-day hearing on 16 September 2016. At that hearing, I raised with Mr Marriott, counsel for the Body Corporate, whether, given the nature of the legal duty alleged in the statement of claim, the individual
unit owners ought to be joined as plaintiffs. I adjourned the proceeding to allow
2 Minute of Associate Judge Christianson dated 22 April 2016.
counsel to consider and take steps in respect of joining the individual unit owners (who would each need to consent to being joined as a plaintiff).3 I also issued a minute later that day, affirming my reasons for the adjournment, and also raising the question of whether limitation issues could flow from the joinder, given that the apartments were built in the period between 2008 and 2009.4
[11] On 7 October 2016, Mr Marriott filed a memorandum noting that he was in the process of gaining the consent of the individual unit owners, so they could be joined. He also submitted that limitation issues do not arise given that the defects only became reasonably discoverable in 2013.
[12] On 28 October 2016, Mr Marriott filed a further memorandum which included signed joinder consent notices from various unit owners (of Judges Apartments: 2A, 2B, 2D, 3A, 3B, 3C and 3D; and Hobson Apartments: 2A, 2B, 2C,
3A, 3B and 3C).5 The consent notice from the owners of Hobson Apartment 2B,
included an inscription stating “We understand that there will be no call for funds from us”.
[13] I issued a further minute on 17 November 2016 in which I considered
Mr Marriott’s submissions as to limitation, as well as the applications for joinder.6
For context, I set out the broad contents of this minute below.
Decision as to limitation/joinder
[14] In respect of the limitation issue, I observed that commentary to r 4.56 of the High Court Rules records that generally, the Court will not add a party where the effect would be to defeat a limitation defence.7 An illustration of this is the decision of the English Court of Appeal in Mabro v Eagle Star and British Dominions
Insurance Company Ltd.8 In that case, and some six years after the original writ had
3 Rule 4.56(3).
4 Body Corporate No. 381372 v Heron Point Projects Ltd HC Auckland CIV-2015-404-001066,
16 September 2016 (Minute).
5 The owners of Judges Apartment 2C elected not to join the proceedings.
6 Body Corporate No. 381372 v Heron Point Projects Ltd HC Auckland CIV-2015-404-001066,
17 November 2016 (Minute as to joinder).
7 Jessica Alexander (ed) Sim’s Court Practice (online looseleaf ed, LexisNexis) at [HCR4.56.15]; Andrew Beck (ed) McGechan on Procedure (online looseleaf ed, Brookers) at [HR4.56.14].
8 Mabro v Eagle, Star and British Dominions Insurance Co Ltd [1932] 1 KB 485 (CA) at 489.
been issued in the name of Mabro, an application was made to join a Mr Zok as a plaintiff. The defendants opposed the application on the basis that any action by Mr Zok was clearly barred by the Statute of Limitations. Scrutton LJ for the Court of Appeal said the following:9
The objection to joining [Mr Zok] was that if he were joined and treated as a plaintiff as from the time the writ was issued the defendant would be deprived of the benefit of the Statute of Limitations. Whether the matter is one of discretion or not, it appears to me inconceivable that we should make an order which would have the effect I mentioned. It has been the accepted practice for a long time that amendments which would deprive a party of a vested right ought not to be allowed.
(Emphasis added)
[15] However, and at least in relation to the joinder of a further defendant, in Ketteman v Hansel Properties,10 the House of Lords rejected the proposition that a cause of action against a new defendant “related back” to the time the claim was originally commenced. Lord Keith said:11
A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action which is referred to must be the bringing of the action against that defendant in respect of that cause of action. … In my opinion there are no good grounds in principle or in reason for the view that an action is brought against an additional defendant at any earlier time than the date on which that defendant is joined as a party in accordance with the rules of court.
[16] This issue was also considered by Rodney Hansen J in Thompson v Good Shepherd Convent Trust.12 In that case, the limitation issue was not clear cut and called for findings of fact and discretionary assessment. Rodney Hansen J referred to the judgments of the Court of Appeal in S v G and W v Attorney-General,13 to the effect that it is preferable that a final determination of such Limitation Act defences await the substantive hearing. To avoid any risk of joinder affecting the additional parties’ limitation defences (if any), Rodney Hansen J stated:14
Joinder would not therefore prejudice the intended defendants provided they are protected from the consequences of their joinder being deemed to take
9 At 489.
10 Ketteman v Hansel Properties [1987] 1 AC 189 (HL).
11 At 200.
12 Thompson v Good Shepherd Convent Trust (2000) 14 PRNZ 684 (HC).
13 S v G [1995] 3 NZLR 681 (CA); W v Attorney-General [1999] 2 NZLR 709 (CA).14 At [17].
effect from the date of issue of the original proceeding. That can be achieved by permitting joinder on terms that the claim against the intended defendants does not operate until the date it was filed. That course was adopted in Liptons Cash Registers & Business Equipment Ltd v Hugin (GB) Ltd [1982] 1 All ER 595, a decision at first instance but approved by the Court of Appeal in Ketteman v Hansel Properties Ltd [1985] 1 All ER 352 (CA). In Liff v Peasley Brandon LJ approved an order in these terms. After discussing the competing interests of the plaintiff and proposed new defendant, and the inability to resolve the limitation question on an interlocutory application, he said at p 643:
In order to get over this difficulty the order giving leave to add the new defendant will have to be made on special terms, namely that the addition shall not relate back but shall take effect from the date of amendment of the writ only.
(Emphasis added)
[17] Therefore, to the extent there could have been any residual issue as to whether the joinder of further plaintiffs “relates back” to the date of the commencement of the original claim, I made orders permitting the joinder of the individual unit holders, but on terms similar to those adopted by Rodney Hansen J in Thompson v Good Shepherd Convent Trust.
[18] For completeness, I note that this is not a case where there are clear limitation defences in any event.15 Further, and as noted by Potter J in Commerce Commission v Air New Zealand Ltd,16 in such cases, any limitation issues are appropriately determined at trial, following an affirmative defence being raised by the defendant in response to the allegations in the statement of claim. Heron Point has not, of course, raised any such affirmative defence; not having done so in its
original statement of defence and having taken no further steps in this proceeding.
[19] In my minute dealing with joinder, I also observed that the inscription on the owners of Hobson Apartment 2B’s consent notice may have been a record of arrangements between the unit owners themselves, or as between the unit owners
and the Body Corporate. But I observed that a plaintiff to a proceeding may, in
15 For example, it may be that the defective fireplaces, and the issues they have caused, are latent defects, and questions as to discoverability and accrual of the cause of action are governed by those principles set out in Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC) at 526. In this case, the potential defective installation of the fireplaces was first observed in 2013 once an expert had been called in to investigate; see further below at [31].
16 Commerce Commission v Air New Zealand Ltd, HC Auckland CIV-2009-404-8352,
10 December 2009, at [27] – [29].
certain circumstances, be subject to a costs order. Accordingly, I did not consider that the “qualified” consent from the owners of Hobson Apartment 2B was sufficient for joinder. I indicated that if they did wish to be joined, they would need to file notice indicating their “unqualified” consent. No such notice has been filed.
[20] I accordingly ordered that the owners of the relevant apartments who had provided consent (excluding the owners of Hobson Apartment 2B) be joined as plaintiffs. I also ordered that the amended claim be served on the defendant. The defendant was then to have 15 days to file an amended statement of defence, if it wished to do so.
Subsequent events
[21] On 20 December 2016, an amended statement of claim was filed, which included the joined parties as the second to thirteenth plaintiffs. I received a further memorandum from Mr Marriott on 27 January 2017, in which he observed that the defendant’s time for filing an amended statement of defence expired on 24 January
2017, and that no defence had been filed. In early to mid February 2017, Mr Marriott filed further evidence as to the quantification of damages, as well as an affidavit of service of the amended statement of claim on the defendant.
Analysis
[22] I will assess Heron Point’s liability in negligence by asking three questions:
(a) Does Heron Point, as the developer, owe the plaintiffs, as the owners of the apartment units, a duty of care to ensure that the fireplaces are installed with proper skill and care?
(b) If yes, has Heron Point breached this duty?
(c) If yes, what damages should Heron Point pay to the plaintiffs?
[23] As a preliminary point, I note that pursuant to r 10.7, a plaintiff is required to prove the cause of action so far as the burden of proof lies on the plaintiff. This is
similar to a formal proof hearing pursuant to r 15.9, in that a plaintiff is not required to engage with any matters of affirmative defences, set-off or counterclaim.17
Does Heron Point owe the plaintiffs a duty of care?
[24] In Mount Albert Borough Council v Johnson, the Court of Appeal considered whether a building development company owed a duty of care to the subsequent apartment owners.18 The developer in that case, Sydney Construction Co Ltd (“Sydney”), had purchased land on which it intended to develop a block of apartments. Although Sydney held itself out as a development company, its three directors had no building expertise, and the company employed no staff. Instead, it contracted out the construction.
[25] The subsequent owners of the apartments sued Sydney in negligence after finding that significant cracks began to appear in the buildings. Sydney argued that it did not owe the apartment owners a duty of care because the building work was performed by independent contractors. The Court of Appeal unanimously rejected this submission, holding that building developers have a duty of care to ensure that proper care and skill is exercised during construction, and that this duty cannot be
avoided by delegation:19
In the instant type of case a development company acquires land, subdivides it, and has homes built on the lots for sale to members of the general public. The company's interest is primarily a business one. For that purpose it has buildings put up which are intended to house people for many years and it makes extensive and abiding changes in the landscape. … There appears to be no authority directly in point on the duty of such a development company. We would hold that it is a duty to see that proper care and skill are exercised in the building of the houses and that it cannot be avoided by delegation to an independent contractor. (Emphasis added)
[26] More recently, Harrison J in the High Court has reaffirmed, and restated, the principle from Mount Albert Borough Council.20 He accepted that the title “developer” is a loose one, which may encompass all those who seek to financially
benefit from owning land and directly controlling the construction of dwelling
17 Ferreira v Stockinger [2015] NZHC 2916, at [36].
18 Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 (CA).
19 At 240-241, per Cooke J (for himself and Somers J). Richardson J expressly concurred on this point.
20 Body Corporate 188273 v Leuschke Group Architects Ltd (2007) 8 NZCPR 914 (HC).
houses, for other people, on it. And he affirmed that all who fall under this rubric must owe actionable duties to the owners of houses they develop:
[31] The word “developer” is not a term of art or a label of ready identification like a local authority, builder, architect or engineer, whose functions are well understood and settled within the hierarchy of involvement. It is a loose description, applied to the legal entity which by virtue of its ownership of the property and control of the consent, design, construction, approval and marketing process qualifies for the imposition of liability in appropriate circumstances.
[32] The developer, and I accept there can be more than one, is the party sitting at the centre of and directing the project, invariably for its own financial benefit. It is the entity which decides on and engages the builder and any professional advisers. It is responsible for the implementation and completion of the development process. It has the power to make all important decisions. Policy demands that the developer owes actionable duties to owners of the buildings it develops. (Emphasis added).
[27] In light of these authorities, I am satisfied that a developer of a residential apartment complex can owe a duty of care to subsequent owners of the apartment units.
[28] Turning to the present case, I observe that, given this matter is proceeding by way of formal proof, I have limited evidence before me as to the detail of Heron Point’s role in developing the White Heron Point apartment complex. I note, however, that in Heron Point’s initial statement of defence, it admitted to “carrying on business” as the developer of the White Heron Point apartments over the period
2008 to 2009 (which was defined in the statement of claim as the “construction work”). It also admitted that the “construction work” included the installation of the gas fireplaces in the apartments. Heron Point further added (in denying the allegation that it owed a duty of care) that it “contracted Dominion Constructions (1973) Ltd who sub-contracted to The Fireplace People to carry out the correct and safe installation of the fireplaces.”
[29] Given the broad definition courts have taken towards the concept, role and obligations of a “developer” (an approach with which I agree), and given that Heron Point has admitted:
(a) being a developer; and
(b) being “in the business” (inter alia) of developing the White Heron
Point apartment complex over the period 2008 to 2009;
(c) that the construction work in respect of which it was in business included the installation of the gas fireplaces at issue in this proceeding; and
(d)having a degree of control over the construction work, including determining the identity of and contracting with the construction company to physically carry out the development of the White Heron Point apartments,
I am satisfied that Heron Point owes the subsequent owners of the units a duty of care to ensure that the fireplaces were installed with proper skill and care, and in particular that the fireplaces would be fit for purpose and not cause damage to the building elements. For completeness, I note that in the circumstances of this case, Heron Point’s delegation of construction work to a contractor (and the contractor’s further delegation of the fireplaces’ installation to a sub-contractor) does not relieve
Heron Point of this duty.21
Has Heron Point breached its duty of care?
[30] The evidence as to the incorrect installation of the fireplaces comes from a Mr David Creamer. For the past 12 years, Mr Creamer has been the director and sole shareholder of The Green Energy Corporation Ltd. This company trades as “Green Gas”, and specialises in the supply and installation of fireplaces. Prior to his involvement with Green Gas, Mr Creamer had experience in both New Zealand and South Africa’s gas heating industries. He is said to have extensive knowledge about the “Heat & Glo” fireplace range, which is the brand of fireplace that is installed in the apartments. He says he is considered a specialist in the range, and that he travels
the dealer network to provide fault finding, training and heating-solution services.
21 Though there may have been scope for Heron Point to bring the contractor and sub-contractor in as joint tortfeasors, thereby spreading its liability.
[31] Mr Creamer says that he first inspected one of the fireplaces at the apartments in 2013, when he attended to a concern about the fireplace in Judges Apartment 3A. The owners of Apartment 3A became understandably concerned after their television melted, it being mounted directly above their fireplace.
[32] Mr Creamer inspected the fireplace alongside members of his staff, and a builder (which appears to have been the original builder of the apartments). Mr Creamer deposes that he found that the temperature of the wall above the fireplace was heating to more than 250 degrees. Mr Creamer says in his affidavit that upon more a invasive inspection, he found that the fireplace had been incorrectly installed:
(a) First, the non-combustible heat deflector board supplied as part of the fireplace had been removed prior to or during installation. It seemed this had been replaced with a local cement-based board, the origin and composition of which Mr Creamer was not able to determine. Mr Creamer notes in his affidavit that the installation manual for the fireplace says that removing the non-combustible heat deflector boards could result in fire and would be considered a fire hazard.
(b) Second, the manufacturer’s recommended flue had not been used.
Rather, the spigot normally located to attach the flue to the fireplace had been removed, so that an alternate flue product could be fitted. Mr Creamer deposes that this flue had been fitted without leaving a gap between the top of the fireplace and the surrounding wooden framework. In Mr Creamer’s opinion, this meant the heat was not able to leave the fire freely. He considered that this was indicated by the stainless steel turning a “bronze” colour. He records that the installation manual for the fireplace says that only the manufacturer’s flue should be used, and that there must be a clearance between the flue and surrounding combustible surfaces.
[33] Mr Creamer’s overall view was that the manner of installation caused the
heat produced by the fireplace to be retained within the flue and the wall cavity,
rather than being transmitted into the room as intended. As a result, the wall and its framework were heating up to dangerous levels, with the surrounding room being heated very little, if at all.
[34] Though he examined the possibility of repairing these two issues (rather than replacing the fireplace), Mr Creamer said he would be unable to do this due to the fact that heat had now fused the incorrect flue to the fire box, as well as for compliance certification reasons. He therefore saw that there was no option but to replace the fireplace.
[35] Mr Creamer says that he inspected a further four of the fireplaces in the apartments at the time, and that he has subsequently inspected five more. This means he has inspected 10 of the 14 COSMO fireplaces in the apartment complex. Mr Creamer does say, however, that these subsequent inspections were not as comprehensive as the ones for Judges Apartment 3A, due to the need to open up the wall to view the manner of installation. But he is of the view that the heat evident on the wall surfaces above these fires, and the lack of heat in the room, indicates they have been installed in a similar manner to the fireplace in Judges Apartment 3A.
[36] I accept Mr Creamer’s uncontested evidence that the fireplace in Judges Apartment 3A was defectively installed in the manner that he has described. And although the testing of the other fireplaces has been more limited, based on his uncontested evidence, I infer that, on the balance of probabilities, they have also been installed in the same or in a similar manner to the fireplace in Judges Apartment
3A. That is, they have been installed without reasonable skill and care, so to render them not fit for purpose, and in a manner that may cause damage to the building elements.
[37] Given these finding, I accept that Heron Point has breached its duty of care to the plaintiffs.
What damages should Heron Point pay to the plaintiffs?
[38] Mr Creamer has sworn a further affidavit about the cost of repairing the fireplaces. He provides evidence (in the form of various invoices) confirming that
the cost of remediating the fireplace in Judges Apartment 3A, in 2013, was
$11,077.85. He says that although the cost of repairing the fireplaces has risen in the past four years since those repairs were carried out, economies of scale mean that a comparable figure can be estimated for the other apartments (and accordingly forms the basis of a quote he has given for the repairs). He therefore assesses the total cost of remediating all the fireplaces in the affected apartments as $156,000.00, including GST.
[39] I am satisfied that the cost of repairing the fireplaces is the appropriate measure of damages in this case (rather than the diminution in value to the plaintiffs’ properties). There is authority that the cost of remedying should be the prima facie measure of calculating damages in a case such as this,22 although the Court of Appeal has also emphasised that the assessment of the measure of damages in negligence cases “is a factual one and it is necessary to do fairness between the parties”.23 The authorities also note that in order for repair costs to be awarded, the plaintiffs need to intend to carry out the repairs and it is reasonable for the repairs to be carried out.24
[40] I am satisfied that the plaintiffs intend to repair the fireplaces, and that it is reasonable to do so. In this case, the original remedy sought was in fact a mandatory injunction that the repair work actually be carried out. Mr Creamer has given details of the scope of the repair work to be carried out and the costs of doing so. He has given a quote on that basis. I consider there is sufficient material from which to infer that the plaintiffs intend to repair. I also consider it reasonable that the repairs are carried out. Proper heating is, of course, a reasonably desired attribute of any residential home. Further, the safety issues posed by the defective installation of the fireplaces further emphasise the reasonableness of the repairs being carried out. Both these factors point, strongly in my view, to the costs of repair being the
appropriate award of damages, rather than diminution in value of any individual
22 Warren & Mahoney v Dynes CA49/88, 26 October 1988 at 22.
23 Johnson v Auckland Council [2013] NZCA 662 at [110].
24 Chase v de Groot [1994] 1 NZLR 613 (HC) at 627.
apartment.25 Finally, based on the uncontested evidence of Mr Creamer, the repair costs are not, as in some cases of this kind, speculative, and appear reasonable.
[41] I note, however, that the sum of $156,000.00 includes the cost of remediating the fireplaces in the two apartments whose owners are not joined as plaintiffs, being Hobson Apartment 2B and Judges Apartment 2C.26 It is therefore necessary to adjust this figure to reflect that the damages will be used to remediate the fireplaces in 12 apartments, rather than in 14. My proposed award of damages is therefore calculated as follows:
(a) The fireplace in Judges Apartment 3A (being the fireplace owned by the fifth plaintiffs) has already been repaired. The damages awarded to the fifth plaintiffs should not be greater than what was actually spent repairing the damage. I therefore calculate damages for the fifth plaintiffs as being $11,077.85.
(b)The fireplaces in the other 11 apartments are yet to be repaired. I therefore propose to base the damages award in respect of these apartments on the cost of repairing the fireplace in Judges Apartment
3A, in accordance with Mr Creamer’s evidence on this point. This brings me to a (rounded) figure of $11,100.00 damages in respect of each of the second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth plaintiffs.
(c) The first plaintiff, the Body Corporate, has claimed no loss as a result of the breach of duty. Even if Heron Point owed a duty to the Body Corporate on the facts of this case (about which I make no finding), it would have been unnecessary to enter judgment in favour of this party
in any event.
25 In any event, I have no evidence as to the diminution in value that the defective fireplaces has caused, or whether that diminution in value would even be different to the cost of the repairs.
26 See paragraph 2 of Mr Creamer’s second affidavit, sworn 8 February 2017, where he lists the
apartments to which his estimate of $156,000 relates.
Result
[42] I accordingly make the following orders:
(a) Judgment is entered for the fifth plaintiffs in the amount of
$11,077.85.
(b)Judgment is entered for each of the second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth plaintiffs, in the amount of $11,100.00.
(c) Interest on the amounts at (a) and (b) is awarded from judgment to the date of payment, at the default rate prescribed by s 87(3) of the Judicature Act 1908.
(d) The first plaintiff’s claim is dismissed.
(e) The second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth plaintiffs are (collectively) entitled to costs against the defendant, calculated on a 2B basis.
(f) I make no order as to costs in relation to the first plaintiff.
Fitzgerald J
Solicitors: Harrison Stone Lawyers, Auckland (G Stone) To: Equinox Capital Ltd, Auckland (C Dargaville)
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