[1] The plaintiffs sued the defendants for designing and building a defective yard. The plaintiffs said they agreed to build a yard that could carry a 36 tonne fork hoist, or as a “second backdoor” alternative claim, that the design and build of the yard was inherently defective such that the yard was always going to fail irrespective of the use of a 36 tonne fork hoist. I found for them on the latter claim but as no evidence had been filed on specifically identifying or quantifying loss relating to this claim. I concluded that the defendants (DTB Construction Limited (DTB) and Mr Taylor) must have the opportunity to be heard on whether the plaintiffs should be allowed to adduce further evidence specifically relating to the type and quantum of losses arising from the proven breaches. This is my judgment on whether leave should be granted to the plaintiffs to now file that evidence.
Background
[2]As set out in the first judgment:1
[1] In 2016, the EMW Trust (the Trust) contracted with DTB Construction Limited (DTB) to build a warehouse and yard at Jomac Place (the Contract). Mr Taylor and his wife are the only directors of DTB. The Trust has two trustees: Mr Dobbe himself and CHD Trustees (Dobbe) Limited, a company which Mr Dobbe is the sole director of. Mr Dobbe claims, in short, that DTB agreed to design and build him a yard that could take the weight of a fork hoist that could stack containers up to five high. DTB did not do this. Shortly after it was built, the yard failed badly.
[2] The plaintiffs, Mr Dobbe and CHD Trustees (Dobbe) Ltd now sue Mr Taylor and DTB for the costs of repairing the yard. DTB deny any liability. It says DTB built what Mr Dobbe specifically instructed it to build. Mr Taylor also says he is not personally liable for DTB’s work. However, if they are liable, DTB and Mr Taylor also sue GWE Consulting Limited (GWE) the engineering firm that gave them design advice about the yard and associated drainage.
[3] The…
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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AGLC
Dobbe v Taylor [2025] NZHC 731
Case
[2025] NZHC 731
Decision Date
CaseChat Overview and Summary
The plaintiffs, Raymond Dobbe and CHD Trustees (Dobbe) Limited, sued the defendants, Douglas Owen Taylor and DTB Construction Limited, for constructing a defective yard. The plaintiffs alleged that DTB Construction, under Mr Taylor’s direction, agreed but failed to build a yard that could carry a 36-tonne fork hoist. Alternatively, the plaintiffs claimed that the yard was inherently defective and would have failed irrespective of the use of the 36-tonne fork hoist. The court found for the plaintiffs on the latter claim but noted that no evidence had been filed specifically identifying or quantifying the loss relating to this claim. The court granted the defendants the opportunity to be heard on whether the plaintiffs should be allowed to adduce further evidence specifically relating to the type and quantum of losses arising from the proven breaches. The legal issues included whether DTB agreed and failed to build a yard that could carry a 36-tonne fork hoist, whether DTB materially breached the terms of the contract, and whether any proven failure or breach caused material loss. The court found that DTB never agreed to build a yard that could carry a 36-tonne fork hoist, but it did breach the agreement by failing to build a yard fit for the purpose of carrying a 12.5-tonne fork hoist. The court also found that Mr Taylor owed and breached a duty of care to the Trust by failing to properly supervise the design and build process. The court held that the claim for losses caused by the 36-tonne fork hoist must fail, but the plaintiffs were prima facie entitled to damages for the proven contractual and tortious breaches. However, the court declined to allow the plaintiffs to file further evidence on the issue of quantum of their losses in respect of their "second backdoor" claim, as it would be unfair to the defendants and impermissible in terms of s 98(2) of the Evidence Act 2006. The court ordered a case management conference to assess the evidence given at trial and determine the appropriate damages. The defendants were entitled to their costs on this aspect on a 2B basis together with disbursements.