Hsu v Mahoney - [2021] NZHC 2708

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000100

[2021] NZHC 2708

BETWEEN
PI-HUI BEATRICE TSAI HSU

First Plaintiff

AND

KENNETH TSAI

Second Plaintiff

AND

MARGARET ANN MAHONEY and GRAHAM PAUL MCQUEEN

First Defendants (Discontinued)

AND

BUSHNELL INVESTMENTS LIMITED

(formerly named BUSHNELL BUILDERS LIMITED)
Second Defendant

AND

CHRISTCHURCH CITY COUNCIL

Third Defendant (Discontinued)

AND

LANCE PHILIP AUSTIN

Fourth Defendant

AND

BUSHNELL BUILDERS LIMITED

Fifth Defendant

Hearing: 6 October 2021

Appearances:

R G Smedley for Plaintiffs

Judgment:

11 October 2021

JUDGMENT OF JUSTICE DOOGUE

(Quantum)

HSU v MAHONEY [2021] NZHC 2708 [11 October 2021]

This judgment was delivered by me on 11 October 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1] On 1 July 2021, I delivered a judgment in which I found Bushnell Investments Ltd (BIL) liable in contract and negligence for the failure to construct a tanking system to the standard of compliance with the Building Code for the plaintiffs’ home situated at 2 Clearview Lane, Mt Pleasant, Christchurch.

[2] I found BIL and Mr Austin, a director of BIL, to be concurrently liable for general damages of $25,000 to each of Ms Hsu and Mr Tsai.

[3] I reserved leave to the parties to revert to the Court for determination of the quantum for the remediation of the tanking system.

Background

[4] At the hearing in April, the expert quantity surveyor for the plaintiffs, Mr Webber, calculated the cost of remediating the retaining wall at $133,955.00 (excluding GST) broken down as follows:

1

Construction
98,297

Subtotal

98,297

2

Preliminary & General

8

%

7,864

3

Margin

10

%

10,616

Subtotal

116,777

4

Professional Fees

5,000

Subtotal

121,777

5

Contingency

10

%

12,178

Total

133,955

[5] The expert quantity surveyor for BIL and Mr Austin, Mr Eggleton, estimated the remediation cost as $66,654.65. His breakdown was as follows:

Total

46,465.10

Preliminary and General

8%

3,717.21

50,182.31

Contractors margin – 10%

10%

5,018.23

55,200.54

Contingency

5%

2,760.03

Total

excluding GST

$57,960.57

GST

8,694.08

Total including

GST

$66,654.65

[6] In the liability decision I observed that I had reservations about each of the experts’ evidence. I suggested they confer in light of the comments I had made to see if they were able to reach agreement on the cost of remediating the tanking system.

[7] I also invited both experts to consider what efficiencies could be made in the general costings to reflect that remediation of the tanking system on the south retaining wall will need to take place at the same time as the remediation of the tanking system on the east and west elevations of the house.

[8] The experts did not reach an agreed position for consideration by the Court. The plaintiffs therefore now apply for determination of quantum. They filed revised and updated evidence from Mr Webber who gave further evidence at the hearing. The defendants did not file any further evidence nor appear at the hearing. The…

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 Hsu v Mahoney

Details

AGLC: Hsu v Mahoney [2021] NZHC 2708
Case: [2021] NZHC 2708
Decision Date: 11 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Doogue considered a case between Pi-Hui Beatrice Tsai Hsu and Kenneth Tsai, who were plaintiffs, and Bushnell Investments Limited, who was the defendant. The plaintiffs sought to determine the quantum of remediation costs for a tanking system failure in their home. The court had previously found Bushnell Investments Limited liable for the failure to construct the tanking system to the standard of compliance with the Building Code. In this case, Justice Doogue assessed the evidence presented by both parties and determined the appropriate costs for remediating the tanking system.

The main legal issues the court had to decide were the construction cost items that were disputed between the experts, such as the excavation of the south elevation, the cost of moving and reinstating a lamppost, and the supply and installation of Swelltite tanking, among others. The court also had to decide on the appropriate preliminary and general costs allowance, contingency allowance, and whether professional fees were required.

Justice Doogue found that the expert evidence presented by the plaintiffs was more reliable and accurate than that presented by the defendant. The court accepted the expert evidence provided by Mr Webber, who had revised some of his earlier costings and provided a comprehensive explanation for the costs involved. The court found that the costs for remediation should be calculated based on Mr Webber's revised estimate, taking into account the various factors discussed in the judgment.

As a result of the findings, Bushnell Investments Limited was ordered to pay the plaintiffs $140,724.42 plus interest. The issue of legal and associated costs was to be dealt with by way of written submissions. The plaintiffs were to file their submissions within 21 working days, and the defendants had 21 working days thereafter to file their submissions in reply.

Orders