Gauld v Waimakariri District Council - [2013] NZHC 1923

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2011-409-000392 [2013] NZHC 1923

BETWEEN KEITH FRASER GAULD Plaintiff

AND

WAIMAKARIRI DISTRICT COUNCIL Defendant

Hearing: 15-18 April 2013

Counsel:

K W Clay for Plaintiff
F P Divich and A C Harpur for Defendant

Judgment:

31 July 2013

JUDGMENT OF WHATA J

[1] Mr Gauld built a large house with monolithic cladding in 1993. His house was inspected by building inspectors on a number of occasions without any notice of weathertightness defects until 2009. Mr Gauld could not then obtain a code compliance certificate (CCC) when he wanted to sell his home until he had fully reclad his home at great expense.

[2] Mr Gauld now claims for the costs of the recladding from the Council. He alleges (in summary) that the Council was obliged to take all reasonable steps to certify compliance or to notify him of any defects. He says further that a CCC should have issued after an inspection on 10 March 2005 when all then remaining code compliance issues were apparently resolved with the building inspector. He also claims that had he been notified about the cladding problems subsequently found on
22 March 2005, he could have then undertaken targeted repairs at a substantially lesser cost than he subsequently incurred to achieve compliance with the code.
Finally he says that the building inspector said “pleased to get that out of the way,”

GAULD v WAIMAKARIRI DISTRICT COUNCIL [2013] NZHC 1923 [31 July 2013]

referring to the inspection process. He contends that this amounted to negligent misstatement.

[3] The central issues are therefore:

(a) Did the Council owe Mr Gauld a duty of care to take all reasonable steps to certify code compliance or to notify him of defects?

(b) Did the Council negligently fail to perform this duty?

(c) Did the negligence cause Mr Gauld to suffer loss (and if so on what basis should loss be calculated) and

(d)Whether there was any negligent misstatement and if so any loss arising from it.

Facts

[4] Mr Gauld built a large home with monolithic cladding in 1993. At various times since various “final” inspections were undertaken for code compliance purposes. Following one such inspection in 2002 a notice of inspection was produced. A box relating to weathertightness was ticked, but a producer statement for the cladding was required. It also recorded three items, unrelated to weathertightness that needed to be followed up. A copy of the producer statement relating to the cladding was faxed to the Council.

[5] The Council then wrote to Mr Gauld in 2004 foreshadowing a change in the law affecting building consents and that the new regime would apply from February
2005. Mr Gauld sought a CCC and on 10 March 2005 another “final” inspection was undertaken by Prime Consultants, a firm of building inspectors retained by the Council. The three matters identified in the previous inspection were checked and approved. The notice for this inspection was handed to Mr Gauld who was present…

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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Details

Case: [2013] NZHC 1923
Decision Date: 31 July 2013

CaseChat Overview and Summary

Keith Fraser Gauld (the plaintiff) brought an action against Waimakariri District Council (the defendant) for damages for the defendant’s alleged negligence in failing to notify the plaintiff of weathertightness defects in the plaintiff’s home, and for negligent misstatement. The plaintiff’s home was inspected by the defendant on a number of occasions without any notice of weathertightness defects until 2009. When the plaintiff sought to obtain a code compliance certificate (CCC) to sell his home in 2009, he discovered that he had not obtained a CCC. The plaintiff alleged that the defendant was obliged to take all reasonable steps to certify compliance or to notify the plaintiff of any defects. The plaintiff further alleged that a CCC should have issued after an inspection on 10 March 2005 when all then remaining code compliance issues were apparently resolved with the building inspector. The plaintiff also claimed that had he been notified about the cladding problems subsequently found on 22 March 2005, he could have then undertaken targeted repairs at a substantially lesser cost than he subsequently incurred to achieve compliance with the code. Finally the plaintiff claimed that the building inspector said “pleased to get that out of the way,” referring to the inspection process, which amounted to negligent misstatement.

The court found that the defendant owed the plaintiff a duty of care to take reasonable steps to notify the plaintiff of the weathertightness defects known to it within a reasonable period. The court found that the defendant negligently failed to notify the plaintiff of the weathertightness defects within a reasonable period. The court found that the negligence caused foreseeable loss. The court found that the loss to the plaintiff should be calculated on a loss of chance basis, namely the chance that the defendant would have accepted the plaintiff’s targeted repairs. The court put the prospect of this at no more than 20%. The court found that the loss to the plaintiff was assessed at $10,375 based on the evidence of the plaintiff’s expert. Alternatively, the loss could be assessed at the difference between the cost of the full reclad in 2005 and 2009, namely $9,212.85. The court found that a deduction must be made for contributory negligence, which it estimated at 25%. The court found that the plaintiff was entitled to a payment of between $6,913.39 and $7,781.25. The court preferred the lesser figure, as it was based on firm evidence. The court found that the plaintiff was entitled to interest on the award of damages from the date of the filing of the proceedings. The court rejected the claim based on negligent misstatement.

Accordingly, there shall be an order for damages in favour of the plaintiff in the sum of $6,913.39 plus interest from the date of the filing of the proceedings.

Orders