Fursdon v Miller HC Auckland CIV-2004-404-6459

[2005] NZHC 1676

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2004-404-6459

BETWEEN  DOUGLAS FURSDON

Appellant

AND  JANE MILLER

Respondent

Hearing:         6 April 2005 Appearances: Appellant in person

Respondent in person Judgment:  14 April 2005

RESERVED JUDGMENT OF COURTNEY J

Copiesto:           Douglas Fursdon, 5 Carlton Road, Pukekohe Jane Miller, 361 Aka Aka Road, R D 3, Pukekohe

FURSDON V MILLER HC AK CIV-2004-404-6459 [14 April 2005]

Introduction

[1]    Mr Fursdon appeals the decision of Simpson DCJ 18 October 2004. His  claim in the District Court was for breach of a building contract under which he had agreed to undertake alteration work at Ms Miller’s residence. He alleged that Ms Miller had wrongly cancelled the contract before he had finished the work and sought damages of $31,586.00 being the unpaid balance of the contract price.

[2]    In the District Court the respondent defended the claim on the basis that Mr Fursdon himself had repudiated the contract by refusing to undertake work which formed part of it. She also counter claimed in the sum of $16,301.99 being the amount required to rectify work Mr Fursdon had already done, allegedly inadequately.

Facts

[3]    In August 2003 the parties agreed that Mr Fursdon would undertake certain building work on Ms Miller’s house. Mr Fursdon prepared a written quote detailing the work with a building price of $40,000 including GST. Ms Miller signed the  quote and this formed the basis of the contract between them. It is common ground that under the contract Ms Miller was to be responsible for demolition work.

[4]    Over the next few months there were variations agreed to the contract. These were not recorded in writing but they do not form any particularly significant aspect in the case. In particular they did not affect the agreement that demolition work would be Ms Miller’s responsibility.

[5]    On the evidence in the District Court Simpson DCJ found that the relationship between the parties was never happy. Ms Miller was dissatisfied about some aspects of Mr Fursdon’s performance and his attendance on site. The parties reached breaking point in October 2003 when Mr Fursdon refused to cut a hole  in the wall to accommodate a cavity slider.

[6]    This door had originally been intended to be an ordinary hung door but Ms Miller changed it to a cavity slider. It was agreed between the parties that this would form a variation to the contract but there was no discussion about whose responsibility it would be to actually make the space required for the cavity slider. Mr Fursdon maintained it was demolition work, which was Ms Miller’s responsibility and Ms Miller considered it to be building work. She regarded his refusal to do the work as a repudiation of the contract and cancelled it formally by letter 23 October 2003.

[7]    Ms Miller’s evidence at trial was that other builders she engaged to complete work and advise her had been of the view that most of Mr Fursdon’s work was sub- standard and had to be re-done. This included rebuilding a deck and replacing inappropriate roofing material. The cost of the additional work was $16,301.99. Ms Miller called Mr McDonald, a master builder, and Mr Hill who actually undertook the remedial work to give evidence of these aspects.

Appeal

[8]Mr Fursdon raised five points on appeal, which I deal with in turn.

[9]    The first ground of appeal was that the learned District Court Judge made an error in finding that Mr Fursdon had repudiated the contract. In particular she failed to properly consider the contractual obligation on Ms Miller to undertake all demolition work and wrongly found that creating the hole in the wall for a cavity slider was not demolition work but building work.

[10]   Simpson DCJ held that making the opening for the cavity slider was part of the work that Mr Fursdon had contracted to do. It was not demolition work.  When he refused to do that work he effectively repudiated the contract.

[11]   I cannot see any basis on which to interfere with this decision. It seems to me that making a specific opening of exactly the right dimensions is building work rather than outright demolition. I do not think that the learned District Court Judge approached the issue wrongly and I am not going to interfere with her finding. It

follows that the Judge’s consequent finding that Mr Fursdon had effectively repudiated the contract also stands.

[12]   The second ground of appeal was that the Judge made an error in awarding the respondent damages for work, which was outside the scope of the contract. I questioned Mr Fursdon carefully on this ground. His submission was that any work not included in the original quote should be regarded as outside the scope of the contract and could not be the subject of any damages claim. However, Mr Fursdon confirmed that nearly all of the work to which he was referring related to the variations which had been agreed between he and Ms Miller. He was only able to point to one instance of work (that being a bigger than previous door under the deck) which had not been part of either the original contract or any variation.

[13]   Mr Fursdon has misunderstood what the scope of the contract was. As a matter of law the variations agreed to by the parties had the effect of varying the original contract. So the variations did form part of the scope of the contract.

[14]   There was no evidence as to the additional amount which would have been involved in the door under the deck but it was almost certainly such a small amount as not to make any significant difference because it simply increased access to the crawl space beneath the deck. If not covered by a door it would simply have been covered in the same way as the surrounding area. As a result I do not have any evidence that would warrant interfering with the decision on this issue.

[15]   The third ground of appeal was that the judgment as sealed contained $140 for court costs whereas such costs were not included in the judgment of Simpson DCJ. I allow the appeal to this extent.

[16]   The fourth ground of appeal was that the District Court Judge followed an unfair procedure in allowing the defendant’s witnesses to be present in court while the defendant’s other witnesses were giving evidence. Mr Fursdon says that he did not ask the Judge for an order that the witnesses be excluded. He could not point to any specific prejudice as a result of the other witnesses being present.

[17]   The final ground of appeal was that the Judge awarded the defendant witness expenses of $100 without any reference to the applicable witness fees regulations or to any actual costs incurred by the defendant. The transcript shows that Ms Miller sought witness costs at the hearing but was unable to say exactly what they were.

[18]   She advised me during this appeal that she had received invoices in relation  to the costs subsequent to the appeal and wished to tender them. In view of Mr Fursdon’s objection I declined to accept this new evidence. However, I do consider that, given the evidence generally adduced by the defendant at trial, the District Court Judge was entitled to infer that the defendant had incurred some costs in relation to the expert witnesses. Under r 46 District Court Rules all matters relating to the costs of the proceeding are at the Court’s discretion. I cannot see any basis on which I should interfere with the discretion exercised in this case.

[19]   The appeal succeeds only to the limited extent of the $140 erroneously included in the sealed judgment. All other grounds of appeal fail.

[20]   Both parties were unrepresented in this Court and therefore the issue as to costs on the appeal does not arise.

P Courtney J