BETWEEN FRANK BYRNE AND CHERIE BYRNE TRADING AS FRANK BYRNE
BUILDERS
First Plaintiffs

AND

FRANCISCUS PETRUS MARIA VAN GRUNSVEN AND OTHERS

Second Plaintiffs

AND

MARK HUME TRADING AS MANA THE PLUMBER

Third Plaintiff

AND

WAITAPU ENGINEERING LIMITED

Fourth Plaintiff

AND

DAVID ROSS JACOBSEN AND OTHERS

Fifth Plaintiff

AND

ANTHONY PAGE AND OTHERS

Sixth Plaintiff

AND

CAROLYN ROSE

Defendant

Hearing: 7 – 18, 22 May 2018

Appearances:

G M Downing for First and Third Plaintiffs S R Carey and A H H Choi for Defendant

Judgment:

27 February 2019

JUDGMENT OF GRICE J

BYRNE V ROSE [2019] NZHC 273 [27 February 2019]

Contents

Para No
Background [1]

The Byrne and Hume claims [20]

Did Mrs Rose and the Byrnes have a contract?  [25] Did Mrs Rose have an intention to contract with Mr Byrne?  [27] Were the terms of the contract sufficiently certain?  [43] Other terms      [55]
Express Terms  [55]
Three-metre not three and a half metre stud  [62]
Flameproof fridge panel  [67]
Bondor panelling to the gable ends of the shed  [72]
No block work  [77]
Laying PVC pipes outside  [80]

Deadlines  [84]
Implied terms  [102]
Fit for the purpose of a dairy shed  [107]
Reasonable care and skill  [113]

Cancellation of the contract? [116]

Breaches of contract  [118]
Deadline breaches  [120]
Fit for purpose: the concrete floor and drainage  [122]
Minor construction defects  [161]

Mr Hume: the sumps and drainage [163]

Claim by Mr Byrne  [184]
Windsor Roller Door  [190]
Bosch Premium Rotary Hammer Drill  [193]
Christchurch Trip  [196]
Conclusion  [203]

Damages sought by Mrs Rose [206]

Losses arising from defects in the dairy shed [210]

Scope of the works [210]
Quantity Surveyors’ evidence on remedying the defects [215]

Loss of profits [223]
Loss of profit claims for the 2015/16 season [226] Loss of profits claim for the 2016/17 and 2017/18 milking seasons [245] Death and injuries to cows [283]

Losses due to failure to meet deadlines [292]

Dumped milk  [292]
Cost of cleaning effluent pond due to dumped milk  [302]
Cost of storing robots offsite  [304]
Tasman District Council Penalties  [305] Loss of profit claims – calculations  [307] Loss of production from shortened season and 12 cows  [314] General Damages  [330]

Construction Contracts Act 2002: the invoices [334]

Concurrent liability in tort  [339]
Interest rates  [343]
Mr and Mrs Byrnes  [343]
Mr Hume  [349]

Conclusion [350]

Leave to apply [354]

Costs [355]

Background

[1] The first plaintiffs, Mr and Mrs Byrne trading as Frank Byrne Builders, built a dairy shed for the defendant, Carolyn Rose. The third plaintiff, Mr Hume trading as Mana the Plumber, did the plumbing and drainage work in and around the dairy shed. The plaintiffs are each claiming the balance they say is owing to them by Mrs Rose. Mrs Rose counterclaims against them, alleging the work was not carried out properly, the dairy shed was not completed and it was not fit…

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.

Continue reading Byrne v Rose

Details

AGLC: Byrne v Rose [2019] NZHC 273
Case: [2019] NZHC 273
Decision Date: 27 February 2019

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine the liability of Carolyn Rose for the outstanding invoices for the construction of a dairy shed and to determine the extent of her counterclaims against the Byrnes and Mr Hume. The Byrnes and Mr Hume claimed for outstanding payments under their contracts for the construction of the dairy shed. Rose counterclaimed for breaches of contract and in tort by the Byrnes and Mr Hume. Rose alleged that the construction of the dairy shed was defective and unsafe for the cows. She claimed that the cows were injured and that she lost milk production as a result of the defects. The Byrnes claimed interest on the money owing to them and Mr Hume claimed interest on the balance owing on his invoices. Rose claimed general damages for the injuries to and deaths of the cows and for her distress. The Court found that Rose and the Byrnes had a contract for the construction of the dairy shed. The Byrnes were largely successful in their claims. The Court found that the Byrnes were in breach of contract by failing to meet deadlines and by failing to construct the dairy shed so that it was fit for the purpose of milking cows. Rose was successful in her counterclaims against the Byrnes. The Byrnes were not liable in tort. Rose was not entitled to damages for lost profits or for general damages. The Byrnes were not entitled to interest on their claim. The Court found that Rose and Mr Hume had a contract for drainage work around the dairy shed. Mr Hume was entitled to payment for the work done. The Court ordered that the Byrnes pay Rose the balance owing on their invoices, and that Mr Hume pay Rose the balance owing on his invoices. The Byrnes were not entitled to interest on the balance owing. Rose was awarded nominal damages of $1,500 in respect of the loss of production. The Court granted leave for the filing of memoranda on the calculations of damages and costs.

Orders