Hewitt v Window World Franchise Limited HC Whangarei CIV-2009-488-000488

[2011] NZHC 179

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2009-488-000488

BETWEEN  M HEWITT Appellant

ANDWINDOW WORLD FRANCHISE LIMITED

First Respondent

AND  R BROWN

Second Respondent/Third Party

Hearing:         14 and 15 July 2010

Counsel:         SA Grant and EA James for Appellant

DM Grindle for First Respondent
PJ Magee for Second Respondent

Judgment:      4 March 2011 at 4:00 PM

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 4 March 2011 at 4.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Law North Partners, Private Bag 1001, 0245, Kerikeri 0230 for Appellant

Webb Ross, DX AP24506, Whangarei for First Respondent

Thomson Wilson, DX AP24512, Whangarei for Second Respondent

M HEWITT V WINDOW WORLD FRANCHISE LIMITED HC WHA CIV-2009-488-000488 4 March 2011

Introduction

[1]      The appellant (Mr Hewitt) and his wife built a multi-storey house on a cliff- side site in Northland overlooking the Kerikeri inlet.  The first respondent (Window World) negotiated with Mr Hewitt for the supply of aluminium joinery.   Window World says a contract for supply was concluded which was repudiated by Mr Hewitt. It sued him for damages in the District Court at Whangarei.

[2]      Mr  Hewitt  issued  third  party  proceedings  against  the  second  respondent (Mr Brown) whom he had engaged as project manager.   He claimed that in his advice to him in relation to aluminium joinery and his dealings with Window World, Mr Brown acted negligently and in breach of fiduciary duty and should be required to indemnify him for any damages recovered by Window World.

[3]      Judge Cadenhead awarded Window World damages of $112,221.84.[1]     He dismissed the claim against Mr Brown.  Mr Hewitt appeals against the judgment.

Issues

[1] Window World Franchise Ltd v Hewitt DC Whangarei CIV-2006-088-643, 29 June 2009.

[4]      The judgment was a lengthy one – 203 paragraphs – reflecting the multitude of  issues  raised  on  behalf  of  Mr  Hewitt.    Most  of  the  Judge’s  findings  were challenged on appeal.   Fortunately, the issues covered in the appellant’s written synopsis (at 335 paragraphs, exceeding the length of the judgment), including arguments which had not been raised in the District Court, were refined to some extent in the course of oral submissions.  The principal findings of the Judge which remain in contention are:

(a)       That a contract was concluded.

(b)There were no misrepresentations inducing Mr Hewitt to enter into the contract.

(c)       The Sale of Goods Act 1908 did not apply.

(d)      There was no breach of the Consumer Guarantees Act 1993. (e)        Window World did not repudiate the contract.

(f)       There was no breach by Window World of implied or express terms of the contract.

(g)      Window World’s loss was $112,221.84.

(h)      There was no breach by Mr Brown of duties owed to Mr Hewitt.

Was there a contract?

[5]      The architects’ plans for the house specified as the exterior joinery ―light commercial suite from Fletcher Aluminium Limited‖.    After Mr Brown’s appointment as project manager, he took responsibility for finalising the supply of window joinery.   It was agreed that he would obtain quotes from contractors and present them to Mr Hewitt for approval.   It was understood that Mr Hewitt would have the final say.

[6]      When Mr Brown took over the window file from Mr Hewitt, there was a quotation on the file from Nebulite Warkworth for the Fletcher Aluminium light commercial suite specified in the plan.  It was for $199,334.  Mr Brown decided to obtain a quote from Window World so that Mr Hewitt had an alternative price and could also compare the ability of the two suppliers to handle what he described as ―a massive bloody window job‖.  Mr Brown knew the owner of Window World, Robert Sydney Poffley.   At the relevant time Window World was a franchise operation which supplied extrusions produced by National Aluminium Ltd (―Nalco‖) under the brand name Nulook.

[7]      Mr Brown had an initial meeting with Mr Poffley.   He showed him the

Nebulite quotation  (though  not  the price)  and  the window related  plans.   After

reporting to Mr Hewitt, it was agreed that Mr Hewitt would meet Mr Poffley so that Mr Hewitt could decide whether Window World should be asked to submit a quote. Mr Brown  did  not  attend  the meeting.   The accounts  of the meeting  given by Mr Hewitt and Mr Poffley differed somewhat.  There is, however, agreement that Mr Poffley suggested changes to the system specified by the architects and that he explained, in general terms, the changes he had in mind.  They included replacing sash windows on the side of the house with fixed windows because of the risk they could blow out when being opened.

[8]      After the meeting Mr Hewitt told Mr Brown to proceed to obtain a quote from Window World.   In preparing the quote, Mr Poffley specified a mixture of commercial and residential extrusions and a different window layout for the main bedroom.  These changes are claimed by Mr Hewitt to have resulted in a stylistically inferior design and the introduction of a wide vertical bar when the main bedroom windows are open which substantially impacts on the visual aesthetics of the view.

[9]      The quote was collected from Window World by Mr Brown.  It comprised a letter, accompanied by drawings illustrating the configuration of the windows.  The following day, 9 June 2006, Mr Brown took the quote to Mr Hewitt. Again, there are differences between Mr Hewitt and Mr Brown as to exactly what was said.   Mr Brown accepts that he told Mr Hewitt that the Nulook product complied with the Building Code whereas he was not sure that the Nebulite window would comply.  He also accepted that he told Mr Hewitt that the configuration of the joinery was the same but said there were changes to the design which Mr Hewitt and Mr Poffley had discussed  and  of  which  he  was  unaware.   After  a  brief  discussion,  Mr  Hewitt endorsed the letter with the word ―Accepted‖ on the quote and signed underneath. He did not sign a form attached which specifically recorded agreement with the enclosed terms and conditions of sale.

[10]     Judge  Cadenhead  found  that  Window  World’s  quotation  was  an  offer, accepted by Mr Hewitt when he signed the document and faxed it to Window World. It is submitted that this was an error because the parties were not ad idem on all terms essential to the formation of the contract.  That is because Mr Hewitt claims to have believed that he was being offered something different from what was set out in

the offer documents, specifically joinery that more closely conformed to what was in the plans.

[11]     The challenge to this aspect of the judgment cannot succeed.   Mr Hewitt’s complaint is that the product detailed in the offer was not what he believed it to be. He says when he signed the documents, he erroneously believed that the Window World joinery was not materially different from what had been specified by the architect. That is tantamount to a plea of non est factum which was not pleaded. The Judge considered the issue anyway.   He observed, referring to Saunders v Anglia

Building Society,[2] that Mr Hewitt could not rely on his failure to read the documents

[2] Saunders v Anglia Building Society [1971] AC 1004 (HL).

sent to him before signing.  He quoted from the judgment of Viscount Dilhorne:[3]

I agree that a man of full age and understanding who can read and write cannot be allowed to repudiate his signature to a document which he knows will have legal consequences if he signs it without reading it[.]

[3] Ibid, at 1020–1021.

[12]     The  offer  documents  are  clear  as  to  the  subject  matter  of  the  contract. Mr Hewitt communicated his acceptance.  A contract was concluded for the supply of the goods at that point.   Its existence was not doubted at the time.   Mr Hewitt recognised  it  later  when  he  negotiated  a  reduction  in  the  deposit  agreed  to  be payable.

Misrepresentation

[13]     The following misrepresentations were alleged in the amended statement of defence:

26In  or  about  June  2006,  prior  to  signing  the  initial  quote,  the defendant met with Sydney Poffley of the plaintiff company, and was falsely told by him that the joinery to be supplied by the plaintiff was ―the same thing‖ as the Fletchers commercial suite or words to that  effect,  and  that  representation  became  a  condition  of  any contract that may have been formed.

27The joinery later offered by the plaintiff was of a lesser value and quality and was substantially different to the Fletchers joinery, so that  the  plaintiff’s statement to the contrary was misleading and

amounted to a misrepresentation which induced the defendant to

later accept the plaintiff’s quotation.

28The  plaintiff  became  aware  of  the  price  previously  quoted  by Nebulite  for  the  Fletchers  joinery  and  set  its  price  to  a  similar amount, thereby falsely representing that its joinery was of the same quality and value to the Fletchers commercial suite of joinery when the plaintiff’s joinery was of a lesser quality and value.

[14]     The representation that the joinery was ―the same thing‖ as the Fletchers commercial  suite  was  alleged  to  have  been  a  term  of  the  contract.     All representations were relied on as part of a course of misleading and deceptive conduct, warranting an order under s 43 of the Fair Trading Act 1986 that any contract was void.

[15]     Judge Cadenhead, rejecting Mr Hewitt’s account of the meeting, found that his claim that the joinery was represented to be ―the same‖ was implausible, given the extensive changes Mr Poffley had told him he would make for good functional reasons.  His Honour held that Mr Poffley did not make any misrepresentations in his discussions with Mr Hewitt.  He found that Mr Poffley conveyed to Mr Hewitt his concerns about the joinery plans and how he would deal with those issues but made no false statements of fact.

[16]     In relation to the second alleged misrepresentation, the Judge found that the quotation documents did not contain any misrepresentation.  He continued:[4]

They set out accurately what Window World proposed to supply and carry out under the contract.  Some of the information is technical, but that does not mean that it is false.

[4] Window World, above n 1, at [169].

[17]     As developed in oral submissions, Ms Grant’s challenge to this aspect of the judgment is to the Judge’s finding that there had been no misrepresentation at the meeting.  However, for the purposes of the appeal, and unavoidably in light of the Judge’s factual finding,  she did not assert an express misrepresentation that the joinery would be the same.  She relied instead on Mr Poffley’s failure to disclose that the Window World joinery would have a different appearance.   When associated with the positive representation that there would be functional changes, this is said to

amount to a misrepresentation that there would be no change to the appearance of the joinery.

[18]     This is a materially different case from the one Window World was asked to meet at the hearing, necessary, as I have said, in order to get around the Judge’s finding that the express representation relied on had not been made.  But even if the alleged misrepresentation had been characterised at first instance as it has been on appeal, it could not have affected the outcome.

[19]     While  Mr  Poffley  told  Mr  Hewitt  that  he  would  keep  the  configuration specified by the architect, the Judge found that he made it clear that the joinery would be changed to meet the practical concerns he had identified.  A reasonable person in Mr Hewitt’s position could only infer from Mr Poffley’s advice that there would be consequential changes to the appearance of the joinery.  That is why the Judge found it quite ―implausible‖ that Mr Poffley would have told Mr Hewitt that the joinery would be the same.  The quotation for the joinery was accompanied by detailed specifications.  There is no complaint about their accuracy.  There is nothing in the circumstances in which the quotation was provided which could have given rise to a duty on Window World to make further disclosure to Mr Hewitt.  Only if that had been the case, could his silence have given rise to a misrepresentation - see,

for example, Unilever New Zealand Ltd v Cerebos Gregg’s Ltd.[5]

[5] Unilever New Zealand Ltd v Cerebos Gregg’s Ltd (1994) 6 TCLR 187.

[20]     The Judge did not separately analyse the alleged misrepresentations for the purpose of the claim under the Fair Trading Act 1986.  He said the claim under the Fair Trading Act could be analysed in the same way as for a claim of misrepresentation.  On appeal, that was said to be an error of law.

[21]   There is no merit in this argument.   While in some circumstances a misrepresentation which does not come within ss 6 or 7 of the Contractual Remedies Act 1979 may amount to misleading and deceptive conduct under the Fair Trading Act, this is clearly not such a case and nothing was said on behalf of Mr Hewitt to suggest otherwise.  On the Judge’s findings of fact there could be no liability under the Fair Trading Act.

Sale of Goods Act

[22]    In the lengthy submissions addressed on behalf of the appellant on the application of the Sale of Goods Act 1908 it was argued that, contrary to the Judge’s findings, the contract was a sale of goods under the Act.  It was submitted that there was a sale by description and a breach of the implied condition that the goods shall be reasonably fit for the purpose for which they are required.  It is clear, however, that the defences raised under the Sale of Goods Act could not be maintained.

[23]     The  Consumer  Guarantees  Act  1993  applies  to  the  supply  of  goods  or services; Mr Hewitt was a consumer as defined in s 2 of that Act because the joinery was to be acquired for domestic use.  Accordingly, s 56A of the Sale of Goods Act applies to exclude the application of ss 15 and 16 of that Act relating to sales by description and the implied conditions as to quality or fitness.

Consumer Guarantees Act

[24]     Under s 6 of the Consumer Guarantees Act, the supply was subject to a guarantee that the goods would be of acceptable quality.   ―Acceptable quality‖ is defined in s 7(1):

For the purposes of section 6, goods are of acceptable quality if they are as—

(a)      fit for all the purposes for which goods of the type in question are commonly supplied; and

(b)       acceptable in appearance and finish; and

(c)       free from minor defects; and

(d)       safe; and

(e)       durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f)       the nature of the goods:

(g)       the price (where relevant):

(h)       any statements made about the goods on any packaging or label on the goods:

(i)       any  representation  made  about  the  goods  by  the  supplier  or  the manufacturer:

(j)       all other relevant circumstances of the supply of the goods.

[25]     Mr Hewitt accepted that the requirements of subparas (a), (c), (d) and (e) were met.   The issue was whether the goods were acceptable in appearance and finish.   Mr Hewitt complained that the joinery specified by Window World was unacceptable in that respect.

[26]     The complaint arises principally from the decision of Window World to use two different styles of ―suites‖ as they are known.   Both the Nulook and Fletcher window joinery were offered in residential and commercial suites.   As earlier mentioned, architects had specified (and Nebulite had quoted on) Fletcher’s light commercial  suite.     Window  World  decided  against  using  only  the  Nulook commercial suite and specified a combination of commercial and residential.

[27]     The use of the residential suite was said to differ from the ―square minimalist look‖   of  the  Fletcher  light  commercial  suite  and  Mr  Hewitt  contended  the combination of residential and commercial suites was aesthetically unacceptable.  In addition, the different  window layout  specified by Window World  for the main bedroom on the two lower levels which would result in a wide vertical bar down the centre of the window frame when the window was open.  This contrasted with the specification in the plans which called for no central mullion in the open position.

[28]    The mixture of residential and commercial suites and the change to the configuration  was  made  in  response  to  practical  considerations.     The  Judge (preferring  Mr  Poffley’s  account  of  the  meeting  to  Mr  Hewitt’s)  found  that Mr Poffley told Mr Hewitt that the joinery specified by the architects would not cope with the high wind load on each side of the house.  A heavier style was required. The sliding windows specified also raised waterproofing difficulties.  Changes were also required in the lower floors which were not air conditioned.  As a result, Mr Poffley  provided  for  condensation  channels  in  order  to  meet  Building  Code standards.

[29]     The Judge found that Mr Hewitt could not fairly complain about the use of residential joinery.  He said Mr Hewitt had been told that residential sliding doors would be specified and, given the waterproofing issues, the residential joinery was appropriate.  He found concerns about the appearance of the joinery from the outside to be highly exaggerated.  The design did not provide for the building to be viewed other than from below, on an angle and at a distance.   The Judge rejected the submission   that   the   use   of   residential   and   commercial   joinery   created   an unacceptable effect from this perspective.   He found there were good functional reasons to change the configuration of the bedroom windows.

[30]     Judge Cadenhead concluded:[6]

Here the defendant’s complaints about the joinery go to appearance only. They are not matters of such great moment as to give rise to a right to reject under s 21.  The reality is that the joinery installed by Window World would have been acceptable to any ordinary reasonable consumer, although not to Mr Hewitt.  But it should be remembered that he was also in a bind – he had given  the  joinery  contract  to  both  Nebulite  Warkworth  and  to  Window World.   He had to get rid of one and that was the plaintiff.   What started Mr Hewitt down the path of cancelling Window World’s contract was the complaint Nebulite made to him after it learnt that it did not have the job.

[6] Window World, above n 1, at [182].

[31]     The appellant has not been able to point to any flaw in the reasoning that led the Judge to conclude that the goods were of acceptable quality.  He addressed the s 7 test of whether a reasonable consumer would regard the goods as of acceptable quality.  There was ample evidence to support his view that the joinery would have been acceptable to any ordinary reasonable consumer.   While there was evidence called on behalf of Mr Hewitt that it was not good practice to mix up the different styles (commercial and residential), there was contrary evidence called on behalf of Window World to say it was not uncommon and perfectly acceptable to use a mix of profiles.    It  is  accepted  that  their  use  made  no  discernible  difference  to  the appearance of the joinery from the inside.   There was no departure from the architects’ configuration and the use of two different suites would not be detectable to a layperson viewing the house from the outside.  The challenges to the Judge’s

finding on this issue must fail.

Repudiation

[32]     This is another ground of appeal which requires Mr Hewitt to depart from the case he relied on in the District Court.  In that Court, he pleaded that, by failing to supply details and shop drawings, Window World repudiated any contract for supply of the joinery.  In this Court, he claims that repudiation occurred by Window World refusing to supply the joinery specified by the architects in the plan.

[33]     The reformulation of the defence for the purpose of the appeal does not assist Mr Hewitt.  As Ms Grant acknowledged, a refusal to supply in accordance with the architects’ plans would involve a repudiation only if Window World had agreed to supply the joinery specified in the plans.  That was not the agreement.  It was Mr Hewitt who repudiated the contract when he wrote giving notice that he would not be proceeding.

Implied term

[34]     The Judge rejected an argument that there had been a breach of an implied term restricting Window World from departing from the architects’ plans without Mr Hewitt’s express consent.   He found there was no basis in the evidence for implying such a term and that it was, in any event, excluded by cl 8.1 of the terms and conditions of the written contract which provided:

All warranties, descriptions, representations or conditions whether implied by  law,  trade,  custom  or  otherwise  are,  and  all  other  liability  of  the Company, whether in tort (including negligence), contract or otherwise, is expressly excluded to the fullest extent permitted by law.

[35]     The implied term was not pleaded and is another defence that should not have even been considered.  Regardless, the Judge was plainly right to reject it, both by reference to the express term of the contract and the facts as he found them.  The prior discussions between Mr Hewitt and Mr Poffley and the agreement itself clearly contemplated departure from the plans.  Further, as found by the Judge, the contract

made good sense without introducing the term.   It was not required to give the contract business efficacy.[7]

Express term

[7] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363.

[36]     In  yet another argument that had not been pleaded, Mr Hewitt argued a breach of cl 2.1 of the terms and conditions of sale which provided:

Quotations are based on details supplied by the Customer.   Any variation will be at the Customer’s expense.  The Customer shall ensure that the sizes and number of items quoted correspond with the Customer’s requirements.

[37]     For Mr Hewitt, it was submitted that cl 2.1 gave rise to an obligation to supply joinery in accordance with the architects’ plans. Again, the Judge was plainly right  to  find  that  the  provision  did  not  require  Window  World  to  follow  the architects’ plans.  The details supplied covered all of the information exchanged at the meeting which provided the basis for the quotation.

Damages

[38]     The damages awarded to Window World were based on the contract price with an allowance for costs that had been saved.  The Judge accepted that damages calculated on this basis would put Window World in the position it would have been if Mr Hewitt had not repudiated the contract.  The contract price was $168,721.25. The evidence, described by the Judge as unchallenged, was that variable costs saved were $56,499.41. Window World’s loss was accordingly $112,221.84.

[39]     Ms Grant first submitted that the evidence to support Window World’s claim was inadequate.  I disagree.  Mr Poffley and the former manager of Window World, Mr Glenn Hawke, gave detailed evidence to substantiate the calculation of variable costs saved. There was no challenge to that aspect of their evidence.

[40]     Next, it was said the calculation did not take account of extrusions sold.  That is not correct. They were included in the figure for variable costs saved.

[41]     It was then submitted that the award was inconsistent with the unchallenged evidence of Mr John Hagen, called by Mr Hewitt to give expert evidence on the calculation of damages.  It was claimed that there was no challenge to Mr Hagen’s evidence that Window World’s profit from the contract was $30,156.25.   On this basis, Mrs Grant argued that the maximum award should have been $51,505.46, comprising Mr Hagen’s calculation of profit plus net out of pocket expenses.

[42]     Mr  Hagen’s  evidence  does  not  in  fact  mention  the  stated  profit  figure, although he calculates a margin on cost of 22 per cent, based on certain assumptions. Importantly, however, he accepted that if the calculations and  data provided by Mr Poffley were correct, then his approach to the calculation of damages would indeed put him back into a position that he would have been in had the contract not been cancelled.  The evidence of Mr Poffley was accepted as correct.  Mr Hagen’s evidence, accordingly, supports the Judge’s finding.

[43]     Judge Cadenhead considered and rejected a submission that Window World had failed to mitigate its losses, though the defence had not been pleaded.  Even if I were prepared to entertain this ground of appeal, there is no basis to interfere with the factual findings which led the Judge to find that there had been no failure to mitigate, nor to question, as I was also asked to do, his finding that there had been no conduct  by  Window  World  that  would  have  led  the  Court  to  apportion  losses between the parties under s 9 of the Contractual Remedies Act.

Claim against Mr Brown

[44]     Mr Hewitt claimed that Mr Brown was in breach of a duty of care owed in contract in tort, of fiduciary duties and of duties arising under the Fair Trading Act and Consumer Guarantees Act.  After making detailed findings on the claim against Window World, the Judge dealt with the case against Mr Brown in summary fashion. He said:[8]

[8] Window World, above n 1, at [199] – [200].

I have read the defendant’s closing submissions concerning the third party claim and also the defendant’s submissions in reply to that of the third party.

I do not intend to reply to these submissions in great detail as much of what I

have decided equally applies to the third party claim.

[200]    I found that Mr Hewitt was a dominating character, and on the other hand I found that Mr Brown, the third party, was more submissive, in that he did not have great control over the interaction between what Mr Poffley, for the plaintiff, and Mr Hewitt worked out in regard to the completion of the contract.  I do not consider that Mr Brown was negligent in the way outlined by  the  defendant,  nor  was  he  in  breach  of  any  fiduciary  duty  to  the defendant, nor did he make any misrepresentations.  As I have repeatedly said in this decision, Mr Hewitt was responsible for the situation that arose. I cannot see in any way that Mr Hewitt having been a friend of Mr Poffley caused him to breach any duties arising under the contract, tort, statute or equity relative to Mr Hewitt.

[45]     After dealing with a defence that the legal duties relied on were owed, not by Mr Brown but by a company through which he contracted his services, the Judge went on to conclude:[9]

For the reasons that I have given I absolve the third party for any liability in this case.  I might say when it comes to a question of credibility that I prefer any comments made by the third party, Mr Brown, to that of the defendant, Mr Hewitt.   I have earlier given my reasons on the credibility issue.   I absolve the third party from any liability in this case.

[9] Ibid, at [202].

[46]     The Judge had earlier said:[10]

[10] Ibid, at [113] – [114].

I found Mr Brown was a truthful and accurate witness.  He gave a truthful and accurate account of what happened concerning his evidence in front of me.    Where  his  evidence  differed  from  that  of  Mr  Hewitt  I  prefer  the evidence of Mr Brown.

These credibility findings determine the liability of the plaintiff, defendant and third party.  It is my view that the defendant was a difficult person to enter into a contractual relationship.   He clearly controlled the various interrelationships existing in the contract, including the making and breaking of them.

[47]     Mr Hewitt’s initial attack on the findings as they affected Mr Brown was characteristically wide-ranging, narrowing somewhat as argument proceeded until, ultimately, three claims of negligence remained.  The breaches were said to arise in

Mr Brown:

(a)       Failing to properly advise Mr Hewitt in relation to the joinery to be supplied under the quotation from Window World.

(b)Failing  to  make  proper  enquiries  and  advise  in  relation  to  the condensation channels required.

(c)       Failing to take reasonable steps to stop the manufacture of joinery in anticipation of the contract not proceeding.

Failure to advise regarding quotation

[48]     The Judge’s finding that Mr Hewitt alone was responsible for accepting the Window World quotation effectively disposes of the claim that Mr Brown failed to advise  him  adequately  at  the  time.    There  is  ample  support  for  the  finding  in Mr Brown’s evidence.  He was clear that all decisions were made by Mr Hewitt.  He said that in relation to the window joinery contract, he set himself at arm’s length from the outset.  He wanted to avoid any suggestion of a conflict arising out of his friendship with Mr Poffley. All he did was to ensure that the windows complied with the Building Code.

[49]     When Mr Brown took the Window World quote to Mr Hewitt, there was no detailed discussion.   He told Mr Hewitt that he knew the Window World joinery complied with the Building Code and that the configuration or layout was the same as the Nebulite quote.  He did not discuss the detailed changes as this had been the subject of full consideration when Mr Hewitt and Mr Poffley met.

Condensation channels

[50]     The  architects’  specification  required  anti-condensation  channels  to  be provided to all sills.   Such channels are a recognised means of preventing condensation on windows and avoiding water penetration.   Mr Hewitt complained that Mr Brown failed to provide him with accurate advice regarding the need for

condensation channels under the Building Code and to obtain accurate information on the issue.

[51]     Mr  Brown  said  that  he  was  aware  that  the  Building  Code  required condensation channels, subject to certain qualifications.  One of those qualifications was if the interior of the building was air-conditioned.  In the Hewitt house, only one floor was to be air-conditioned.  Mr Brown believed it was necessary to make sure that there were condensation channels on the windows in the other floors.  Mr Brown said his understanding of the requirements of the Building Code was confirmed by building inspectors with the Far North District Council.  Before Mr Hewitt accepted the Window World quotation, Mr Brown said he pointed out to him that the Window World joinery complied with the Building Code, whereas the Nebulite joinery apparently did not.

[52]     While  the  provision  of a  condensation  channel  is  an  accepted  means  of complying with the Building Code in the absence of air-conditioning,  there are apparently other means available.  This does not, however, make Mr Brown’s advice incorrect.   It was consistent with expert evidence given at the hearing.   There is nothing to indicate that Mr Brown’s advice on this issue misled Mr Hewitt into accepting the Window World quotation.

Failing to stop manufacture

[53]     Some two weeks before Mr Hewitt cancelled the Window World contract, Mr Christopher (Kit) Lowe, an employee of Mr Hewitt’s architects, telephoned Mr Brown  after  Nebulite  had  complained  to  him  that  Window  World  had  been contracted to supply the joinery.  Mr Lowe said Mr Brown told him that the Window World quote had been accepted by Mr Hewitt and that it was a ―done deal‖.  He told them that he could not hold off proceeding with the contract as the joinery had already been ordered.

[54]     Mr Brown agreed that he had spoken to Mr Lowe and asked him whether Window World could hold off manufacturing the windows until the architects had approved the design.   He told them that would not be possible as the job was

underway.  That was confirmed by Window World the following day.  He advised Mr Hewitt  of  what  was  happening.    Mr  Hewitt’s  response  was  ―don’t  let  Syd [Mr Poffley] be intimidated by the architects‖.  Some days later, Mr Hewitt met with Mr Brown and  Mr Hawke of Window World  and  discussed  the contract.   The discussion proceeded on the basis that the contract was on foot.

[55]     The Judge accepted that Mr Brown acted in good faith throughout.  He found that at the time of Mr Lowe’s conversation with Mr Brown, Mr Hewitt was at odds with his architects and apparently committed to proceeding with the Window World contract.   It was only after Mr Hewitt later reconciled with his architects that he decided not to proceed.

[56]     On the basis of Mr Brown’s evidence and his earlier factual findings, there was a sound basis for the Judge’s finding that the conduct of Mr Brown at no time breached any duty owed to Mr Hewitt.

Result

[57]     The appeal fails on all grounds. The judgment of Judge Cadenhead stands. [58]     If counsel are unable to agree, I will consider memoranda in relation to costs.

My provisional view is that an award in excess of scale is warranted.

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Rodney Hansen J