Goodman-Jones v Hughey t/a Dave Hughey Builders
[2020] NZHC 1489
•29 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000839
[2020] NZHC 1489
BETWEEN PHILLIPPA ANNE GOODMAN-JONES and GARETH GOODMAN-JONES
Plaintiffs
AND
DAVE HUGHEY trading as DAVE HUGHEY BUILDERS
First Defendant
AND
BUILDING CHOICES LIMITED
Second Defendant
Hearing: 22 June 2020 Appearances:
P J Shamy for Plaintiffs
J E Bayley for First Defendant
No appearance for the Second DefendantJudgment:
29 June 2020
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 29 June 2020 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GOODMAN-JONES v HUGHEY [2020] NZHC 1489 [29 June 2020]
[1] The plaintiffs engaged the first defendant under a contract to build them a house on a labour-only basis. The plaintiffs purported to cancel the contract before completion and now seek damages against the first defendant alleging breach of contract and negligence.
[2] The first defendant has sought further particulars of the plaintiffs’ amended statement of claim. The plaintiffs resist the request. The issue is to what extent are the plaintiffs required to provide the particulars sought.
Background and the causes of action
[3] The plaintiffs commenced this proceeding on 10 October 2017, initially against the first defendant only. The first defendant filed a statement of defence on 30 November 2017. The plaintiffs’ reply to the statement of defence was filed on 7 December 2017. On 21 March 2019, directions were made setting the case down for trial, which included a close of pleadings date of 1 July 2019. The plaintiffs did not comply with the directions. The plaintiffs made a late decision to join the second defendant. The second defendant was joined as a party with leave on 4 December 2019. The plaintiffs filed an amended statement of claim dated 9 December 2019. The first defendant requested further particulars of the amended statement of claim and when they were not provided made this application on 28 January 2020.
[4] The plaintiffs plead the first defendant is a builder who contracted with them on 20 May 2014 to build a house at 51 Bayview Road, Charteris Bay. The contract is a registered Master Builders Federation labour-only building contract. The first defendant was to provide labour-only building services on an hourly basis at fixed contract rates with a 10% margin on any materials the plaintiffs requested him to supply. Mr Bayley took me to a number of clauses in the contract which indicate that the plaintiffs were responsible for the works and the first defendant was supplying labour with no project management responsibilities.
[5] On 9 June 2016, and before completion of the house, the plaintiffs purported to cancel the contract. The kernel of the plaintiffs’ complaint concerns the framing and cladding of the house which the plaintiffs say must be removed and replaced.
[6] The plaintiffs plead two causes of action alleging breach of contract and negligence. As far as the contract claim is concerned it is alleged the first defendant:
(a)made excessive labour charges;
(b)ordered framing that was not constructed in accordance with the consented plans and specifications because the dwang spacings were not at the required centres;
(c)failed to install the cladding in a proper and workmanlike manner consistent with the consented plans and relevant standards;
(d)failed to complete the contract within a reasonable time; and
(e)ordered items that were not required or installed them incorrectly.
[7] In their second cause of action the plaintiffs plead the first defendant negligently breached a duty to ensure that framing delivered by the second defendant conformed with the consented plans and specifications and the required specifications of the manufacturer and supplier of the cladding.
The rules and the principles
[8]High Court Rule 5.26 relevantly provides:
5.26 Statement of claim to show nature of claim
The statement of claim –
(a)must show the general nature of the plaintiff’s claim to the relief sought; and
(b)must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action;
…
[9]The classic statement of the purpose and scope of particulars is to be found in
Price Waterhouse v Fortex Group Ltd as follows:1
Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.
…
What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings.
…
The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.
…
In marginal cases, it is better to avoid generalities and rules of thumb, and to return to principle. The pleader and Court simply ask “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”. This is not, under modern practice, simply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.
…
Nor does the modern requirement for pre-trial exchange of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry.
[10] Recently in Smith v Attorney General, Associate Judge Johnston relied on Price Waterhouse and emphasised the principle that the statement of claim must, in the individual circumstances of the case, be sufficiently detailed to clearly state the
1 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17-19.
issue and inform the opposite party of the case to be met.2 That principle, coupled with the warning against drawing nice distinctions between facts, evidence and law and the need to apply common sense, provide a workable test.
The plaintiffs’ objections to the request for particulars
[11] Mr Shamy argues the allegations against the first defendant in the amended statement of claim are substantially unaltered from the original statement of claim. The first defendant did not seek particulars of the original statement of claim. Mr Shamy accepts that the filing of a statement of defence does not preclude the first defendant from seeking particulars but says it is a highly relevant circumstance. Mr Shamy submits the first defendant should not be heard to complain that he is unable to plead to matters which he has already pleaded to. Mr Shamy’s epigrammatic submission misstates the first defendant’s position. The first defendant’s complaint is not that he cannot plead to the amended statement of claim but that it does not contain sufficient particulars to fairly inform him of the case he must meet.
[12] As Mr Shamy acknowledges, the filing of a statement of defence does not preclude a later application for particulars.3 It is incongruous that the plaintiffs raise delay when the amended statement of claim was filed only with the leave of the court well after the close of pleadings. There can be no suggestion that the plaintiffs have been prejudiced by any delay in the first defendant seeking particulars at this stage.
[13] While the amended statement of claim contains many of the same allegations as the original statement of claim the first defendant had often been unable to plead to those allegations except with bare denials. I accept Mr Bayley’s submission that it had been expected an amended statement of claim would be filed and much earlier than occurred. For instance, the court made a direction by consent on 21 March 2019 the plaintiffs would file and serve an amended statement of claim by 26 April 2019. The amended claim was not filed until 10 December 2019. The request for particulars was then promptly made. I do not accept the plaintiffs’ objection based on delay.
2 Smith v Attorney-General [2020] NZHC 836 at [8].
3 Notter v McInnes [1961] NZLR 793.
[14] Next, Mr Shamy argues that r 5.26 requires the plaintiffs to provide only sufficient particulars and not exhaustive or all particulars. A mechanical approach or pedantry is to be avoided, he says, and the sufficiency of a pleading is to be gauged at the stage the proceeding has reached having regard to the information that has been exchanged.
[15] The detail of the plaintiffs’ claim is to be found, Mr Shamy submits, in reports of the plaintiffs’ expert Maynard Marks, which have been provided to the first defendant. Mr Shamy also observes that invasive testing has been done and a judicial settlement conference conducted. He contends a significant amount of information has been provided to the first defendant so that the particulars sought are not necessary.
[16] It has been recognised that modern case management, the sequential exchange of briefs of evidence and the exchange of experts’ reports before trial may be taken into account when assessing the adequacy of pleadings. However, the pleadings provide the road map determining the course of proceedings.4 They regulate how the litigation is conducted at every stage from commencement to trial. The pre-trial exchange of information does not alter the need for proper particularised pleadings.5
[17] Experts reports are not pleadings and do not serve the purposes of pleadings. They will vary in quality and are often prolix. Their content may be based upon undisclosed instructions or assumptions. They may not have been prepared with a view to the specific issues that will arise in the proceeding. They may contain irrelevant and inadmissible material. Often, they are provided only late in a proceeding during the run-up to trial and, even then, may be subject to change.
[18] I accept that in the context of a request for particulars such information may be considered in determining the level of detail required to fairly inform another party of the case to be met. In making that assessment the court exercises its judgement based on such matters as the nature of the information exchanged, the extent to which the parties have committed to an agreed list of issues, the timing of the request for particulars, and experience as to the manner in which cases are prepared for trial. But
4 Price Waterhouse v Fortex Group Ltd, above n1, at 17.
5 Body Corporate 351522 v Queenstown Lakes District Council [2013] NZHC 559 at [62].
the requirements of the Rules cannot be simply set aside. If a pleading is plainly inadequate in terms of the Rules such information is not a suitable surrogate.
[19] The Maynard Marks reports are not an answer to the first defendant’s criticisms of material deficiencies in the amended statement of claim. The reports and attachments run to hundreds of pages. It is simply not reasonable to expect the first defendant to make a judgement about all the matters that may be raised against him at trial. The first defendant’s task would be all the harder because the reports do not address all of the matters in respect of which particulars are sought, speak to work that was not performed by the first defendant or is not the subject of the claim and are not always consistent with allegations in the amended statement of claim.
[20] Mr Bayley referred to Platt v Porirua City Council where the plaintiff sued the Council alleging breach of duties of care regarding the issue of a building consent, subsequent inspection and issue of a Code of Compliance Certificate.6 The Council sought particulars of the claim in relation to each of the alleged defects including the objective standards which it was said the builders and contractors had been required to meet.7 Kós J considered the claim was insufficiently particularised. He required the plaintiff to particularise any objective standards expressed either in specific acceptable solutions deemed compliant with the Building Code or in alternative solutions that the plaintiff said form part of the standards the builder and contractors were required to meet. He also ordered the plaintiff to explain by way of particulars how the Council was required to ensure compliance with those standards and how its non-compliance with the pleaded standards required of it resulted in loss.8 Mr Bayley also referred to Body Corporate 199883 v Auckland Council which is authority that required particulars can include the location of alleged defects within a building which might include diagrams to assist in identifying precise locations.9
[21] Mr Shamy challenges the relevance of these authorities. He focused on Platt which he submits is of limited relevance because it was a leaky building case involving two levels of standards (those needed to be conformed to by the builder and by the
6 Platt v Porirua City Council [2012] NZHC 2445.
7 At [34].
8 At [35]-[36].
9 Body Corporate 199883 v Auckland City Council [2017] NZHC 2042 at [36].
Council). This is, Mr Shamy argues, a straightforward case where the level of complexity of pleading in Platt is not required. I accept that Platt was a more complex case and that the judgment concerned a claim against the Council and not the builder. That said, both Platt and Body Corporate 199883 contain useful general guidance applicable in this case.
The further and better particulars requested
[22] The request for further particulars relates to paragraphs 6, 14, 15, 16 and 29 of the amended statement of claim. I set out both the relevant pleading and the particulars required by the first defendant in respect of each request.
Paragraph 6
[23]Paragraph 6 relevantly provides:
That the plaintiff pleads the contract seriatum but inter alia it included the following express and implied terms:–
(i)To construct a residential home at 51 Bayview Road Charteris Bay to a lock-up shell and to project manage the build based on an hourly rate.
[24]The particulars required are:
[W]hether the alleged term that the first defendant was to “project manage the build” was an express or implied term and, if the former, the words within the contract that constitute such express term.
[25] The pleading that the first defendant was to project manage the build is obscure; the express terms of the contract appear to provide otherwise. The pleaded terms are said to be express or implied terms with no attempt to identify which are express terms and which are implied terms. Whether a particular term is said to be express or implied is not, as Mr Shamy submitted, just a matter of evidence and contractual interpretation. The first defendant is entitled to know whether any term is an express term of the contract and where the term is contained within the contract (if in writing). I consider also that to the extent implied terms are pleaded, it is appropriate that any factual matters upon which the plaintiffs rely that require the
implication of such a term should be pleaded.10 It follows the first defendant is entitled to the particulars sought in relation to paragraph 6 of the amended statement of claim.
Paragraph 14
[26]Paragraph 14 of the amended statement of claim pleads:
That the first defendant ordered the framing from the second defendant and in so doing placed the order for the same.
[27]The particulars required are:
[H]ow and when the first defendant allegedly ordered the framing; and [W]hat detail the first defendant allegedly supplied in ordering the framing.
[28] There is ambiguity in the words “ordered the framing”. The first defendant says he had no involvement in ordering the framing and only advised a desired delivery date. It appears the plaintiffs intend to allege that the first defendant engaged the second defendant to supply the framing and provided the specifications. On this basis, the plaintiffs will say, the first defendant was responsible to ensure prior to installation that the framing conformed to the correct specifications. It is not clear how and when the first defendant is said to have placed the order. The first defendant clearly needs such information to prepare his defence.
[29] Mr Shamy argues that from discovery provided by the second defendant it should not be difficult to “figure out” when and how it is alleged the first defendant ordered the framing. Having considered those documents, I do not agree with that submission. The documents indicate to me the plaintiffs placed the order for the framing but that is not a matter upon which I can or need to make a ruling. The first defendant is entitled to know when and how it is said that he ordered the framing and what detail it is alleged he supplied to the second defendant when doing so. The first defendant is entitled to the particulars sought in relation to paragraph 14 of the amended statement of claim.
10 Clapperton v Orion New Zealand Ltd HC Palmerston North, CP42/01, 1 April 2003.
Paragraph 15
[30]Paragraph 15 of the amended statement of claim pleads:
That the framing was not constructed in terms of the consented plans and specifications, more particularly the dwang spacings were not at the required centres.
[31]The particulars required are:
[W]hat the “required centres” were, including with reference to the New Zealand Building Code and acceptable construction tolerances.
[32] The pleading specifically relates to detail of dwang spacings on the consented plans and specifications. It does not relate to the Building Code or acceptable construction tolerances. There is no suggestion of uncertainty about what the consented plans provide in respect of dwang spacings. I consider this pleading is adequate. On that basis the particulars sought are not required.
Paragraph 16
[33]Paragraph 16 of the amended statement of claim reads as follows:
16.That the first defendant failed to install the cladding in a proper and workmanlike manner in accordance with:-
i.Timspec Certclad Installation literature (the manufacturer/supplier of the cladding);
ii.The approved consented plan (BCN/2013/10664);
iii.New Zealand Building Code clause E2;
iv.Good trade practice applicable for the installation of the same.
Leading inter alia to the following main defects.
(a)Incorrect installation of cedar cladding fixings (stainless steel nails): Horizontal Nailing Installation.
(b)Incorrect installation of cedar cladding fixing (stainless steel nails): General Poor Installation.
(c)Incorrect installation of cedar cladding: vertical spacing.
(d)Incorrect installation of penetrations through cedar cladding.
(e)Roof/wall, bottom of cladding and cladding head flashing junctions. Lack of vermin protection.
(f)Cedar cladding not pre-drilled for fixing in isolated areas.
(g)Timber pole and pile foundation bracing connections loose.
[34] In respect of paragraphs 16(a) – (g) of the amended statement of claim the first defendant requires the plaintiffs to particularise:
(a)what physically the defects are that caused the loss;
(b)the standards that the first defendant was to meet in the case of each defect;
(c)how the first defendant is said to have breached the standards;
(d)the location of alleged defects; and
(e)how, in the case of paragraph 16(g), the alleged defect relates to the relief sought, namely the complete recladding of the house.
[35]The specific particulars sought are as follows:
16(a) Plead:
(a)how the horizontal nailing installation was allegedly “incorrect”;
(b)which section(s) of the Timspec Certclad Installation literature the horizontal nailing installation allegedly contravened and how was it contravened;
(c)which section(s) of the approved consented plan (BCN/2013/10664) the horizontal nailing installation allegedly contravened and how was it contravened;
(d)which section(s) of the New Zealand Building Code clause E2 the horizontal nailing installation allegedly contravened and how was it contravened; and
(e)how the horizontal nailing installation allegedly contravened good trade practice applicable for the installation of the same (i.e. the standard that ought to have been met, including with reference to acceptable construction tolerances).
16(b) Plead:
(a)how the installation of the cedar cladding fixing allegedly constitutes “General Poor Installation”;
(b)which section(s) of the Timspec Certclad Installation literature the “General Poor Installation” allegedly contravened and how was it contravened;
(c)which section(s) of the approved consented plan (BCN/2013/10664) the “General Poor Installation” allegedly contravened and how was it contravened;
(d)which section(s) of the New Zealand Building Code clause E2 the “General Poor Installation” allegedly contravened and how was it contravened; and
(e)how the “General Poor Installation” allegedly contravened good trade practice applicable for the installation of the same (i.e. the standard that ought to have been met, including with reference to acceptable construction tolerances).
16(c) Plead:
(a)how the vertical installation allegedly constitutes “General Poor Installation”;
(b)which section(s) of the Timspec Certclad Installation literature the vertical installation allegedly contravened and how was it contravened;
(c)which section(s) of the approved consented plan (BCN/2013/10664) the vertical installation allegedly contravened and how was it contravened;
(d)which section(s) of the New Zealand Building Code clause E2 the vertical installation allegedly contravened and how was it contravened; and
(e)how the vertical installation allegedly contravened good trade practice applicable for the installation of the same (i.e. the standard that ought to have been met, including with reference to acceptable construction tolerances).
16(d) Plead:
(a)which penetrations the first defendant is alleged to have undertaken through the cedar cladding;
(b)how the penetrations were allegedly “incorrectly installed”;
(c)which section(s) of the Timspec Certclad Installation literature the penetrations allegedly contravened and how was it contravened;
(d)which section(s) of the approved consented plan (BCN/2013/10664) the penetrations allegedly contravened and how was it contravened;
(e)which section(s) of the New Zealand Building Code clause E2 the penetrations allegedly contravened and how was it contravened; and
(f)how the penetrations allegedly contravened good trade practice applicable for the installation of the same (i.e. the standard that ought to have been met, including with reference to acceptable construction tolerances).
16(e) Plead:
(a) which location(s) of the house, and over how many lineal metres, there is allegedly a lack of vermin protection.
16(f) Plead:
(a) which cedar boards (with reference to “isolated areas”) were allegedly not pre-drilled.
16(g) Plead:
(a) how the alleged loose timber pole/pile foundation bracing relates to the relief sought, namely the cost of completely recladding the house.
[36] Paragraph 16 is an agglomeration of alleged defects described in the broadest terms using vague self-concluding statements that do little to inform. The descriptions “Incorrect installation” or “General Poor Installation” do nothing to illumine the first defendant or the court in what respects the installation was incorrect or poor. The plaintiffs plead that the cladding was not installed in a proper and workmanlike manner in accordance with various standards but do not identify the specific provisions within those standards that have been breached nor describe in what respects the as-built element failed to comply with that standard. The plaintiff cannot be expected to identify within numerous standards which particular provisions may be relevant. Consistent with Platt the particulars should be provided.
[37] In so far as the first defendant seeks particulars of the location of alleged defects, this is appropriate because the defects appear to be isolated and it is not clear how they can lead to the relief that is sought for the cost of a total re-clad.
[38] The particulars sought in relation to paragraph 16(g) are appropriate because the allegation on its face appears to be irrelevant to the claim for a total re-clad.
[39] I have dealt above with why the first defendant is not required to attempt to identify this information from the Maynard Marks reports but note that if, as Mr Shamy argues, the information is readily obtainable from those reports there is no reason why the plaintiffs should not promptly provide it.
Paragraph 29
[40] Paragraph 29 of the amended statement of claim relates to the cost to complete the contract following cancellation and pleads:
That the cost of this additional work was $21,188.75 including GST.
[41]The particulars required are:
Why the first defendant is allegedly liable for the cost of a third party undertaking work that was not undertaken by the first defendant under a charge-up contract.
[42] At paragraph 28 of the amended statement of claim the plaintiffs plead that after cancelling the contract they engaged another builder. Paragraph 29 concerns the amount paid to that builder. The pleading is deficient in that there is no specific allegation of breach of the contract to support the claim. The allegation floats unmoored to the rest of the pleading. Paragraph 29 does not inform the first defendant of the basis for this claim and it must do so. The particulars sought should be provided.
Result
[43] The application is allowed in relation to the particulars sought of paragraphs 6, 14, 16 and 29 of the amended statement of claim.
[44] Counsel are to confer in relation to costs and if they cannot agree memoranda may be filed within 21 days which shall be no longer than 5 pages.
[45]The following timetable shall apply:
(a)the plaintiff is to file and serve an amended statement of claim by
21 July 2020;
(b)amended statements of defence shall be filed by 11 August 2020;
(c)there shall be a teleconference at 11am on 26 August 2020 to make directions for trial. Counsel shall confer to attempt to reach agreement on a suitable timetable and file preferably a joint memorandum no later than 17 August 2020. Any timetable should include provision for the pre-trial conferral and reporting by experts.
O G Paulsen Associate Judge
Solicitors:
P J Shamy, Barrister, Christchurch Rhodes & Co, Christchurch
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