Dobbe v Taylor - [2023] NZHC 2122

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1978

[2023] NZHC 2122

BETWEEN
RAYMOND HENRY DOBBE and CHD TRUSTEES (DOBBE) LIMITED, as

trustees of the EMW TRUST Plaintiffs

AND

DOUGLAS OWEN TAYLOR

First Defendant

DTB CONSTRUCTION LIMITED
Second Defendant

AUCKLAND COUNCIL

Fifth Defendant

Hearing: 31 July 2023 (by AVL)

Appearances:

S E Russell for Plaintiffs

A J B Holmes for First and Second Defendants

Judgment:

9 August 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

This Judgment was delivered by me on 9 August 2023 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: …..

DOBBE v TAYLOR [2023] NZHC 2122 [9 August 2023]

Introduction

[1] This proceeding concerns a container storage facility and warehouse built by DTB Construction Limited (DTB) for the plaintiffs at 26 Jomac Place, Auckland. One of the plaintiffs, Mr Dobbe, dealt with Mr Taylor (the first defendant) who is also the director of DTB, and through another company with his wife, the shareholder of DTB.

[2] The essence of the plaintiffs’ claim is that the new storage facility which the plaintiffs say was designed and built by DTB had to be strong enough to withstand loads from fully loaded containers stacked three to four containers high, along with the equipment necessary to move and stack those containers - being heavy hoist lifts.

[3] The plaintiffs say the surface built by DTB has failed completely and had to be replaced.

[4] Mr Dobbe fronted the negotiations on behalf of the plaintiff trust, the EMW Trust (the Trust). Mr Dobbe says he has no expertise in construction and relied on assurances from Mr Taylor that DTB could deliver a yard capable of dealing with the heavy loads involved. Mr Dobbe says Mr Taylor assured him that he would personally supervise the works; hence one of the causes of action being that Mr Taylor personally assumed a duty of care in relation to the construction.

[5] DTB and Mr Taylor seek further particulars of the statement of claim. Their application first came before me in April 2023 when the then current statement of claim was the third amended statement of claim. That claim was 185 paragraphs long and contained six causes of action together with schedules of defects.

[6] When that matter came before me in April 2023, there were discussions as to the form of the proceeding and some of the issues that I saw with the way the statement of claim was framed. As recorded in a Minute issued after the hearing, rather than determine the applications, the hearing became in effect an issues conference.

[7] As a result of those discussions, a fourth amended statement of claim was filed on 19 May 2022.

[8] While Mr Holmes, counsel for DTB and Mr Taylor, accept the fourth amended statement of claim is an improvement, nonetheless an amended application for particulars has been filed along with an application to…

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 Dobbe v Taylor

Details

AGLC: Dobbe v Taylor [2023] NZHC 2122
Case: [2023] NZHC 2122
Decision Date: 9 August 2023

CaseChat Overview and Summary

In the case of Dobbe v Taylor, the plaintiffs, Raymond Henry Dobbe and CHD Trustees (Dobbe) Limited, as trustees of the EMW Trust, brought a claim against the first defendant, Douglas Owen Taylor, and the second defendant, DTB Construction Limited, along with the Auckland Council as the fifth defendant. The plaintiffs alleged that a storage facility and warehouse constructed by DTB for them had failed and required replacement, as it was not built to withstand the necessary loads, including fully loaded containers stacked high and heavy hoist lifts. The plaintiffs claimed that Mr. Taylor, a director of DTB, had assured them that he would personally supervise the construction, thereby assuming a duty of care.

The legal issues before the court involved the sufficiency of the plaintiffs' statement of claim and whether certain causes of action were statute-barred. The defendants sought further particulars and applied to strike out two of the six causes of action on limitation grounds. The court examined Rule 5.26 of the High Court Rules 2016, which requires statements of claim to provide sufficient particulars to inform the court and the opposing parties of the plaintiff's cause of action. The court also considered the principle that litigation should be conducted fairly, openly, without surprises, and to reduce costs.

The court found that while the fourth amended statement of claim was an improvement, it still required some amendments to meet the necessary level of detail. Regarding the limitation issues, the court determined that there was a reasonable possibility that the Fair Trading Act claim and the pre-contractual misrepresentation claim were brought within time. Specifically, the court could not conclude with certainty that the plaintiffs were aware of the damage prior to the limitation periods starting to run, particularly as the evidence indicated that the plaintiffs may have initially viewed the damage as fair wear and tear. Consequently, the court dismissed the applications to strike out those causes of action.

As a result, the court did not order costs at this stage, inviting the parties to file submissions if they wished to seek costs. The court emphasized that if no submissions were filed within ten working days, no order regarding costs would be made.

Orders