Hu v Mender Construction Limited
[2025] NZHC 1607
•17 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1731
[2025] NZHC 1607
IN THE MATTER OF a breach of contract BETWEEN
DEAN HU
Plaintiff/First Counterclaim Defendant
AND
MENDER CONSTRUCTION LIMITED
First Defendant
TAO MA
Second DefendantSEVENTEETH CONSTRUCTION COMPANY LTD
Third Defendant
WEIDA LIN
Fourth Defendant
Hearing: 4 April 2025 Appearances:
S Jeffs for the Plaintiff
S O McAnally for the First and Second Defendants Y Chen for the Third and Fourth Defendants
Judgment:
17 June 2025
JUDGMENT OF GARDINER J
This judgment was delivered by me on 17 June 2025 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Psalms Law Office, Auckland Bankside Chambers, Auckland Croftfield Law, Auckland
Righteous Law Ltd, Auckland
HU v MENDER CONSTRUCTION LTD [2025] NZHC 1607 [17 June 2025]
Introduction
[1] Dean Hu and his wife acquired a bare site in Dairy Flat, Auckland. They intended to construct a principal house and a minor unit. They obtained a resource consent and a building consent for the building work. The site was steeply sloped in areas and therefore challenging to build upon.
[2] Mr Hu, who is a baker by trade, did not engage a head contractor or project manager. He contracted directly with multiple contractors to complete discrete areas of building work.
[3] Mr Hu engaged Seventeenth Construction Company Ltd (Seventeenth) to undertake building work on the site, including completing a retaining wall between the principal house and a minor unit. Mr Lin is the sole director of Seventeenth.
[4] Mr Hu engaged Mender Construction Ltd (Mender) to undertake earthworks on the site, including backfilling the retaining wall. At the time, Mr Ma was the sole director of Mender.
[5] The project did not go smoothly. The retaining wall failed. Additionally, Auckland Council prosecuted Mr Hu, Mender and Mr Ma for carrying out unconsented earthworks on the southern slope of the property. The Council prosecuted Mr Hu for ignoring abatement notices to stop the work.
[6] Mr Hu now seeks to recover from the defendants the cost to replace the retaining wall and wasted material costs of $176,746.66.
[7] Mr Hu also seeks to recover from Mr Ma and Mender the fines and legal costs he incurred in relation to the prosecution, and the cost of regularising the unauthorised earthworks. These costs amount to $364,891.80.
[8] Separately, Mr Hu claims that Mr Lin, who purchased the neighbouring site from him, damaged Mr Hu’s fence when he dumped earth on the boundary. Mr Hu claims the cost to repair the fence, of $48,357.50, from Mr Lin.
[9]Mr Hu also seeks repayment of a $30,000 loan he says he made to Mr Lin.
[10]The statement of claim pleaded losses of a much greater magnitude: of
$1,658,000 against Mr Ma and/or Mender and $1,321,500 against Mr Lin and/or Seventeenth. On closing, Mr Hu reduced his claim to the amounts described in view of the evidence adduced at trial.
[11] Mr Lin advances a counterclaim for the invoice he issued on 6 February 2020 for $100,280.
The claim
[12]Mr Hu pleads the following causes of action:
(a)Breach of the statutory warranties under s 362I of the Building Act 2004 (Building Act) against each of the defendants.
(b)An alternative cause of action against Mr Ma and Mender for negligence.
(c)A cause of action against Mr Lin in nuisance for dumping earth on Mr Hu’s property.
(d)A cause of action against Mr Lin for breach of contract for his failure to repay monies owed to Mr Hu.
(e)An alternative cause of action against Mr Lin for money had and received. This is no longer relied upon.
[13] The first cause of action is the principal cause of action advanced by Mr Hu against the defendants for the allegedly defective construction works.
RETAINING WALL CLAIM
[14] Mr Hu claims against each of the defendants for breach of the statutory warranties under s 362I of the Building Act, which (among other things) require building work to be carried out in a proper and competent manner and according to plans and specifications in the contract and any relevant building consent.
[15] In the alternative, Mr Hu claims that Mr Ma and Mender breached their duty of care.
The facts
[16] On 14 November 2016, Mr Hu obtained a building consent. The building consent was for a “three level dwelling with detached single level minor dwelling and on-site effluent disposal”. The consent provided for the construction of a retaining wall between the principal house and minor unit which would create a flat area for the driveway. Mr Hu also obtained a resource consent for earthworks associated with the construction of the house unit.
[17] The engineering drawings approved with the building consent specified the design of the retaining wall. Two sets of drawings are relevant: the architectural drawings prepared by BW Building Consultants Ltd and the engineering drawings prepared by CCG Engineers Ltd. The architectural drawings identified the requirement for a cut timber retaining wall between the main house and the minor unit. The engineering drawings detailed the construction of the retaining wall, as follows:
[18]There are two things to note about the detailing on this drawing:
(a)a 2.4 m layer of polyrock fill was required below the driveway.
Polyrock is a lightweight polystyrene rock; and
(b)there was to be a drain coil connected to the stormwater system wrapped with filter cloth, which was to be buried within scoria that sat below the polyrock fill.
[19] In or about February 2018, Mr Hu engaged a Mr Guo to construct the retaining wall. Mr Guo partly built the retaining wall before the relationship ended. It is not known why.
[20] In or about March 2018, Mr Guo introduced Mr Hu to Mr Lin and his company Seventeenth. Mr Hu asked Mr Lin to assist with the foundations for the house and unit and with the retaining wall.
[21] There is no written contract between Mr Hu and Mr Lin or Seventeenth. The arrangement was made via WeChat on 9 March 2018 and at a meeting at Mr Hu’s
bakery the following day. The initial WeChat conversation constitutes Mr Hu asking Mr Lin if he did foundation work and Mr Lin responding “yes”. Mr Hu says that during his subsequent conversations with Mr Lin, he asked Mr Lin to help with finishing the retaining wall. Mr Lin does not dispute that, but says that Seventeenth was hired to provide “labour only”.
[22] Mr Hu says that he gave Mr Lin a copy of the building consent including the retaining wall drawings at the bakery meeting on 10 March. Mr Lin acknowledges that Mr Hu gave him a “couple of papers” but denies receiving a complete set of building consent drawings. Mr Lin says that Mr Hu told him to contact “the engineer” if he had any questions.
[23] From March 2018, Mr Lin had workers on site completing physical tasks. This included building the foundations and, in relation to the retaining wall, putting the timber poles in place and nailing the horizontal wooden boards onto the poles.
[24] The only contemporaneous evidence showing how the relationship between Mr Hu and Mr Lin/Seventeenth worked is a series of WeChat messages. In a WeChat message on 17 April, Mr Hu asked Mr Lin whether the foundations were ready for waterproofing. Mr Lin replied that the concrete had not yet been poured. There was an exchange on 20 April where Mr Lin seemed to ask for the phone number of the geotechnical engineer which Mr Hu provided.
[25] On 10 May, Mr Hu asked Mr Lin if he was coming to “my construction site” that day. Mr Lin replied on 11 May that he would go to the construction site that day and buy 10 bags of cement. Mr Hu asked whether “We need to buy drainage pipes for the retaining wall? There’s about 10 metres at this site. How many people are working today?” Mr Lin responded that Mr Hu should buy 30 m.
[26] On 14 May, Mr Hu asked whether Mr Lin was coming to lay bricks that day. Mr Lin responded that it has been raining but that he went to the site.
[27] On 19 May, Mr Hu asked how many workers Mr Lin had at the site that day and on 20 May, he asked Mr Lin whether he was at the site that day. Between 20 and
23 May, there were exchanges between Mr Hu and Mr Lin about “Alan” coming for an inspection and the Council inspection.
[28] Mr Lin did not charge Mr Hu for the work provided at the time. There is no dispute that this was because Mr Hu had loaned Mr Lin money and they agreed that the cost of the work on the site would be offset against the loan. Seventeenth did issue an invoice to Mr Hu much later, after the work was completed, on 6 February 2020.
[29] Once the retaining wall and foundations were built, they needed to be backfilled with material. Mr Hu contacted Mr Ma, who operates Mender, which provides excavators (diggers), trucks and operators for this machinery. Mr Ma himself is a digger driver.
[30] Mr Hu’s evidence in chief was that, in December 2017, he was introduced to Mr Ma as someone who could place and compact the fill material for the foundations and retaining wall. He said that, on 28 and 31 December 2017, he emailed Mr Ma the foundation plans and other building consent documents. However, it became apparent during cross-examination that the emails he referred to were in fact sent to a different construction company called D & T Homes Ltd.
[31] Mr Ma says that he was introduced to Mr Hu in June 2018 by a person called Leon. He says that Leon informed him that Mr Hu needed an excavator and operator. He says that he met Mr Hu and Leon on site on 24 June 2018, where he was asked to backfill the upper and lower foundations and the timber retaining wall. At that stage, the lower foundations were ready for backfill, but the higher foundations were not. Mr Hu says that work could also start on backfilling the retaining wall. The vertical posts were in place and most of the horizontal boards. There were some boards to be placed higher up once the backfilling started.
[32] Mr Ma says that it was agreed at this site meeting that the retaining wall would be backfilled with clay, which Leon would source and truck onto the site from other building sites because there was insufficient clay on site. Mr Ma says that it was agreed that scoria would be laid along the horizontal boards for drainage and aggregate materials would be laid in the lower foundations. He says that there was no mention
of polyrock at this meeting, and he was unaware that the building consent specified a layer of polyrock fill under the driveway.
[33] Under cross-examination, Mr Hu denied that there was any meeting on 24 June 2018. However, that testimony is inconsistent with his brief of evidence where he refers to a meeting.
[34] At 1.08 pm on 24 June 2018, after the meeting, Mr Ma sent Mr Hu a text confirming the materials that he needed to source and have delivered. In this text, Mr Ma set out the cost for the aggregate materials, digger delivery, digger cost by the hour, plate compactor hire by the day and the cost of extra labour (if required) of
$29 per hour.
[35] Mr Ma asked Mr Hu for the building consent plans and later that day, Mr Hu emailed Mr Ma ten pages of plans. These pages did not include the drawings for the retaining wall. Mr Ma’s evidence is that he did not consider he needed to ask for any other plans because the retaining wall was mostly built, and his role was simply to backfill it.
[36] On 25 June 2018, Mr Hu told Mr Ma by WeChat to interact with Mr Lin “for the operation” and asked him to order “the rocks and volcanic rocks”.
[37] On 26 June 2018, Mr Ma sent Mr Hu an invoice for the aggregate materials, scoria and digger services as per the 24 June quote. The invoice was issued by Mender. The invoice does not refer to polyrock.
[38] Mr Hu and Mr Ma did not enter into a written contract at this time. Later, in February 2019, after the work had finished and Mender had left the site, Mr Hu sent Mr Ma an agreement he had prepared. Mr Hu had backdated the contract to December 2017. Mr Ma says that he thought that strange, but he signed it as he thought that Mr Hu needed it for insurance purposes.
[39] The “agreement” is stated to be between Mr Hu and Mender. Mr Ma is recorded on the agreement as “the digger drive of Mender Construction”. The text states:
Agreement between Dean Hu and Mender Construction Ltd Dean Hu -- The owner of the property, 249b Wright Road, Dairy Ph: [redacted]
Dennis Ma---The digger driver of Mender Construction Ph: [redacted]
This project’s earthworks are quite big and complex. The Mender Construction Ltd takes this project, does all this project’s earth works.
Some parts of the project needs refill. All of the earthworks need to be done in the professional way and professional level
The Mender Construction Ltd guarantees that if any soils are slipped down, they will come and fix them straight away.
[40] Five Mender employees worked on the site over June and July 2018. Their names were Jay, Roy, Omar, Tua and Tyson. Tyson was a truck driver; the others were machine operators. Mr Ma says that he was usually but not always on-site himself. He sometimes operated the machinery himself.
[41] Mender finished the retaining wall work in early July and moved on to filling the lower foundations.
[42] On 24 July 2018, the retaining wall deflected outwards. Mr Ma says that when he drew Mr Hu’s attention to the deflected wall, Mr Hu called Mr Lin. Mr Ma says that there was a meeting later that day and a further meeting with Mr Hu and his engineer. Mr Ma says this was when he became aware that polyrock should have been used for the fill.
[43] Mr Ma took out some earth out and tried to straighten the wall in November 2018, but that was unsuccessful. Nothing further was done about the damaged wall until when Mr Hu made an unsuccessful insurance claim in relation to it in around August 2019.
The parties’ respective positions
[44] Mr Hu claims that each of the defendants breached the implied warranties in s 362I of the Building Act and/or their duty of care to carry out the work:
(a)in a proper and competent manner;
(b)according to the building consent; and
(c)with reasonable skill and care.
[45] Mr Hu’s claim is that Mr Ma and Mender breached these implied warranties and/or their duty of care by failing to use polyrock as specified by the building consent and by driving a fully laden truck over the retaining wall area.
[46] Mr Hu says that Mr Lin and Seventeenth breached the warranties by failing to install a drainage coil inside the retaining wall as required by the building consent or failing to install it correctly. His statement of claim pleads that Mr Lin also failed to install the timber poles at the correct angle and the horizontal boards correctly. These latter two issues were not pursued at the hearing.
[47] Mr Hu claims that the use of clay fill and inadequate drainage meant the earth became too heavy when wet, creating an excessive load on the retaining wall. Further, that when a fully laden truck was driven over the compacted earth, it caused the wall to bulge outwards. Mr Hu also claims that the truck was driven by one of Mender’s staff.
[48] On the basis that the wall failed because of these causes combined, Mr Hu claims damages against each of the defendants for the cost of replacing the retaining wall.
[49] Mr Hu claims against the companies and their directors, on the basis that the contracts were with both the companies and the directors personally. Alternatively, that Mr Ma is personally liable in tort because he was personally responsible for the defective work.
[50] Mr Ma rejects that he is personally liable, either under contract or in tort. He says that the contract was between Mr Hu and Mender. He says that there is no evidence that he was personally responsible for any defective work.
[51] Mender disputes that the statutory warranties apply to the contract because the work was not building work “in relation to a household unit”. If the warranties do apply, Mender disputes that they were breached, because it was contracted to backfill the wall with clay.
[52] Mender says that it did not owe Mr Hu a duty of care. Mender says that Mr Hu bears responsibility for the wall’s failure because he was aware or must be taken to have been aware that the plans specified polyrock fill, he did not share the complete plans with Mr Ma when asked, he chose to use clay rather than polyrock and he failed to have the wall inspected by an engineer before it was filled, as required by the building consent.
[53] Mender says that critically, Mr Hu has not proven that the wall failed because of its defective work.
[54] Mr Lin also rejects that he is personally liable under contract. He says that the contract was between Mr Hu and his company, Seventeenth.
[55] Seventeenth does not dispute that the statutory warranties apply, but says that it did not breach the warranties, because it did lay the drainage coil before the wall was backfilled. Therefore, it is not responsible for the wall’s failure.
[56]Based on these positions, the issues to determine are:
(a)Who are the parties to the contracts?
(b)Do the statutory warranties apply to the earthworks contract?
(c)Did Mr Ma or Mender breach the statutory warranty?
(d)Did Mr Lin or Seventeenth breach the statutory warranty?
(e)Did Mr Ma or Mender owe Mr Hu a duty of care?
(f)If so, did they breach that duty of care?
(g)Did the defendants’ breaches (if any) cause the wall to fail?
(h)Did Mr Hu contribute to the wall’s failure?
Who are the parties to the contracts?
[57] Part 4A of the Building Act implies warranties into oral or written residential building contracts.1 This means that the statutory obligations are upon the building contractor, rather than the individual builder.2
[58] Mr Hu claims against both Mender and Mr Ma, and Seventeenth and Mr Lin, on the basis that the contracts were with both the companies and these individuals personally.
[59] Mr Jeffs for Mr Hu submits that the companies were at best a formality. He emphasises the personal relationships between Mr Hu, Mr Lin and Mr Ma and points out that:
(a)Mr Hu approached Mr Lin and Mr Ma personally after they were recommended to him, and they were personally involved in undertaking and managing the works.
(b)Mr Hu communicated with Mr Lin and Mr Ma through messaging platforms, where it was not possible to distinguish between individual and corporate, and nor was there any obvious attempt by them to disclaim personal responsibility in favour of their companies.
(c)There was no written contract between Mr Hu and Mender and/or Seventeenth when the works commenced in 2018 and, when a written
1 Building Act 2004, s 362H(1)(a)(i).
2 Palmer v Hewitt [2021] NZHC 1460 at [26]–[27].
contract was drafted by Mr Hu for Mender, Mr Ma and Mender both feature prominently in its drafting.
(d)Mr Ma and Mr Lin prepared invoices in the names of their companies but, apart from that, there is little (if any) evidence of the use of Mender and Seventeenth in the documentation. Even then, Mr Lin’s invoice for Seventeenth was prepared some 18 months after its work on the project began.
[60] Mr McAnally for Mr Ma submits that Mr Hu’s contractual relationship was with Mender, not Mr Ma personally. He cannot be made liable for the obligations of the company merely because he was one of its directors.3
[61]Ms Chen for Mr Lin takes the same position.
[62] I find that the contract to backfill the foundations and retaining wall was between Mr Hu and Mender, not Mr Ma personally. There is very little in the way of contemporaneous documentation, but what there is supports this position. First, the invoices issued on 26 June 2018 were issued by Mender. Secondly, the work was carried out by several staff employed by Mender, not just Mr Ma. Thirdly, the 22 December 2017 “agreement” drafted by Mr Hu is between Mr Hu and Mender. Finally, Mr Hu said Mender was responsible for the earthworks during his evidential interview with Auckland Council in May 2019.4
[63] There is even less to go on with respect to Mr Lin and Seventeenth. The only (marginally) contemporaneous documentation is the invoice Seventeenth issued to Mr Hu for the work in 2020. However, Mr Lin’s evidence that Seventeenth’s employees and sub-contractors completed the work was not disputed. I find therefore that the contract was with Seventeenth, not Mr Lin personally.
3See a summary of relevant principles and considerations in Dobbe v Taylor [2024] NZHC 3657 at [160].
4Mr Hu said the following: “But the company is the expert in earthwork”; “Who did the work? Mender Construction”, then goes on to discuss the day-to-day operation as involving “Martell” (who appeared to be Mr Ma); and “Who was responsible for making sure the works complied with the rules? Mender Construction.”
[64] The fact that Mr Hu, Mr Ma and Mr Lin dealt with each other directly and informally is not unusual in owner-operator businesses and is consistent with the cultural context. This manner of dealing with each other does not provide a basis to ignore the corporate structure through which Mr Ma and Mr Lin operated. Nor does the fact that Mr Ma and Mr Lin carried out some of the physical work themselves mean that they are the contractual counterparty, although that is relevant to whether they personally assumed a duty of care for the work.
Do the statutory warranties apply to the earthworks contract?
[65] The purposes of the Building Act include to regulate building work and to promote the accountability of (among others) builders.5 Among other things, the Act imposes obligations on builders, being a person who carries out building work, to ensure that building work complies with the building consent and plans and specifications to which the building consent relates.6
[66] In 2015, the Building Act was amended to provide for consumer rights and remedies in relation to residential building work. A residential building contract is a contract under which one person (the building contractor) agrees with another person (the client) to do building work for the client in relation to a household unit.7
[67] The new Part 4A of the Building Act implies warranties into oral or written residential building contracts.8 These include:9
(a)that the building work will be carried out—
(i)in a proper and competent manner; and
(ii)in accordance with the plans and specifications set out in the contract; and
(iii)in accordance with the relevant building consent (if any):
(b) […]
5 Building Act, s 3.
6 Section 14E(2).
7 Section 362B(1), definition of “residential building contract”.
8 Section 362H(1)(a)(i).
9 Section 362I
(c)that the building work will be carried out in accordance with, and will comply with, all laws and legal requirements, including, without limitation, this Act and the regulations:
(d)that the building work will—
(i)be carried out with reasonable care and skill; and
(ii)be completed by the date (or within the period) specified in the contract or, if no date or period is specified, within a reasonable time:
[…]
[68] As noted, Mender disputes that the earthworks contract is a “residential building contract” to which the implied warranties apply. Mr McAnally submits that the earthworks in relation to the retaining wall was not building work “in relation to a household unit” because the retaining wall is external to and physically separated from the household unit.
[69] I do not accept that submission. Building work includes work that is for, or in connection with, the construction, operation, demolition, or removal of a building. It includes site work.10 Site work means “work on a building site, including earthworks, preparatory to, or associated with, the construction, alteration, demolition, or removal of a building.”11
[70] The earthworks to backfill the retaining wall was “building work”. This area is immediately adjacent to the principal house and the minor unit. The earthworks were necessary to retain the area between the two buildings and create a flat area for the driveway. The work was clearly in connection with or associated with the construction of the principal house and the minor unit.
[71] The fact that the building consent covers the driveway and retaining wall provides further confirmation that it is building work to which the Building Act applies. The building consent prescribes the position and design of the retaining wall, including the type of backfill to be used.
10 Section 7(b), definition of “building work”.
11 Section 7.
[72] Section 362B(1) defines a residential building contract with reference to building work which is in relation to a household unit to draw a distinction between residential and commercial building contracts. These words should not be interpreted to exclude building work from the Act’s regime.
[73] I find that the implied statutory warranties apply to the building contract between Mr Hu and Mender.
Did Mender breach the statutory warranties?
[74]Mr Hu claims that Mender breached the statutory warranties by:
(a)failing to use polyrock fill below the driveway as required by the building consent; and
(b)driving a heavily laden truck above the ground retained by the wall, immediately causing it to deflect.
[75] Mr Hu relies on two reports. The first is a report prepared in response to an insurance claim Mr Hu made in relation to the deflected wall in 2019. The report was prepared by Markplan Consulting Ltd, a structural engineering company. The report was prepared for the loss adjusters considering Mr Hu’s claim, Sedgwick New Zealand Ltd.
[76] In the report, Markplan concludes that the damage to the wall was “reported” to have occurred when a fully loaded earth moving truck attempted to drive along the top of the retaining wall. The report notes that the wall was filled with clay rather than polyrock as required by the building consent. Additionally, the report notes that Markplan was “unable to locate the outlet for the ground drainage that forms a critical part of the wall design and construction”. The report concludes that the wall appears to have rotated in the ground due to a combination of the incorrect backfill, inadequate subsoil drainage and the application of the fully laden earth moving truck.
[77] The second report was prepared in 2022 when Mr Hu engaged Prendos New Zealand Ltd (Prendos) to inspect and report on issues with the retaining wall and
other areas of the properties. Prendos undertook a site visit and concluded that there was no evidence of any polyrock installed behind the wall. Furthermore, it said:
… there is no record or evidence of subsoil drainage at the base of the retaining wall, which would contribute to the retained soil/backfill becoming waterlogged and increasing the surcharge on the wall.
[78] Prendos noted that inspection reports from the design engineer recorded the pile positions and hole depths during construction of the wall. However, there was no record of an engineers’ visit to view the horizontal boards, backfill, polyrock or other elements. A geotechnical engineer inspected the pile holes but did not inspect any backfill behind the wall or witness any drainage.
[79] The authors of the reports were not called by Mr Hu to give evidence. The reports are therefore hearsay. Mr McAnally objected strongly to the admission of the reports and submitted that they should not be afforded any weight. I admitted the reports under s 18(1)(b)(2) of the Evidence Act 2006, however, I expressly did so on the basis that I would assess the weight to be given to the reports once I had heard all the evidence. On closing, Mr Jeffs acknowledged that the Court could not place any more than light weight on the conclusions in the reports.
[80] Mr Ma does not deny that Mender’s workers backfilled the retaining wall with clay. He says that this is what he was contracted to do. He says that it was agreed at the site meeting with Mr Hu and Leon on 24 June 2018 that Mender would backfill the wall with clay which Leon would source.
[81] Consequently, Mr McAnally submits that the contract was to backfill the foundations and the retaining wall with clay. It follows that Mender cannot be said to have breached that statutory warranties because Mender was simply carrying out the terms of the contract.
[82] Mr Hu tells a different story to Mr Ma. In his evidence in chief, Mr Hu stated that in March 2018, prior to him beginning work, Mr Ma instructed him to purchase polyrock for the retaining wall via WeChat. He stated that he purchased all the polyrock required and provided it to Mr Ma. He said that the polyrock is still sitting
unused on his site. However, during cross-examination, it emerged that it was Mr Lin who told Mr Hu via WeChat on 19 June 2018 to buy polyrock.12
[83]Mr Lin says in his brief of evidence:
11. In July 2018, while we were waiting for Polyrock to complete the timber retaining wall, the plaintiff, my workers, and I saw a truck fully loaded with clay pass by the retaining wall. We assumed that more trucks were coming and going over the retaining wall. I am aware that the plaintiff backfilled with clay without following the engineer’s design specifications.
12. I informed the plaintiff that there was a risk of damage to his retaining wall, as the parking area was designed only for small vehicles, not for large or heavy trucks.
13. Also, the retaining wall was incomplete by then. It needed to be finished with poly rock and concrete post-fixing. I can refer my worker or the plaintiff’s architect/engineer to give evidence about this circumstance.
[84] During cross-examination, Mr Lin repeated that the retaining wall was not finished when the truck drove over the area.
[85] Consistent with Mr Lin’s evidence, a photo of the wall taken by Mr Hu on July 2018, at the time of the incident, shows that the construction of the wall was incomplete. This photo appears in Markplan’s report. The photo shows that the horizontal boards had not yet been fixed to the upper sections of the timber poles. Clay had been filled up to the level of the horizontal boards. Plainly, there would need to be further filling to finish the driveway area once the final horizontal boards were fixed in place. Prendos confirmed in their report that the horizontal boards were missing from the top section of the wall (and that the existing horizontal boards had not been installed correctly according to the design).
[86] Referring to the consent drawing for the retaining wall, it specified a top layer of 2.4 m of polyrock under the driveway, against the retaining wall. Mr Lin says that the intention was to complete the area with polyrock fill, but before the wall was finished, the heavy truck drove over the area. It is not possible to determine from the photo whether the remaining area to be filled was 2.4 m, consistent with the design,
12This was in a WeChat message from Mr Lin to Mr Hu dated 19 June 2018: “20 块 Polyrock 24kg/m3 fill high density hardfill 1100 x 1100 x 600mm”. No translation is available.
or a lesser depth. The Markplan and Prendos reports do not address this issue, concluding simply that the retaining wall was filled with clay rather than polyrock as specified by the building consent. From the photo, it would be more accurate to say that the built section of the retaining wall was backfilled with clay, but the upper level of the retaining wall was unfinished and consequently had not yet been filled.
[87] Returning to the issue of breach, the question is whether Mender breached the implied warranty to carry out the work according to the building consent and with reasonable skill and care. Without expert evidence, and/or the ability to test the authors of the reports, it is difficult to reach a conclusion as to whether Mender backfilled with clay in a way that was inconsistent with the wall design.
[88] By a fine margin, I find that Mender did fail to ensure that its earthwork was consistent with the building consent. Under cross-examination, Mr Ma acknowledged that he did not check the drawings for the retaining wall before Mender undertook the filling work. He concedes that he was unaware that the drawings required a layer of polyrock fill. If Mr Ma was unaware of this fact, it is difficult to see how he could have ensured that the clay filling he did was consistent with the specified design.
[89] However, Mr Hu has not established on the balance of probabilities that Mender breached a warranty by driving a fully laden truck along the top of the filled wall. Mr Hu conceded under cross-examination that he did not see Mr Ma or anyone else driving a truck along the retaining wall. The suggestion that the deflection was caused or partly caused by a truck came from Mr Lin, who said that he saw a heavy truck laden with clay near the retaining wall and, two to three days later, the wall had bulged. But Mr Lin could not confirm whether it was a Mender truck. Mr Ma denies that it was one of Mender’s trucks. There is no evidence that Mender was bringing clay onto the site at this time — Mender was trucking on aggregates as needed. Mr Ma’s evidence is that Leon was bringing on trucks of clay on for the retaining wall and foundations and this evidence has not been disputed.13 It seems more likely or is at least possible that the truck that caused the deflection was one of Leon’s.
13Mr Hu was insistent that Mr Ma had trucks on the property but he did not deny that Leon also had trucks on the property.
Did Seventeenth breach the statutory warranties?
[90] Mr Lin does not deny that a failure to install the drainage coil, or to install a coil correctly, would amount to a breach of the implied warranties. He claims that there was no breach because the drainage coil was, in fact, installed.
[91] There is scant evidence before the Court on this issue. Again, Mr Hu relies on the Markplan and Prendos reports. Markplan said that during their site visit “we were unable to locate the outlet for the ground drainage”. Prendos said that “there is no record or evidence of subsoil drainage at the base of the retaining wall”.
[92] Mr Lin was adamant under cross-examination that his staff installed a drainage coil of approximately 40–45 m before the wall was backfilled. When taken to Markplan’s photographs of the retaining wall, he could not identify the outlet in the wall for drainage in any photographs. He suggested that the waterpipe was not long enough.
[93] Against that, a message between Mr Lin and Mr Hu dated 11 May 2018 records Mr Hu asking: “Do we need to buy drainage pipes for the retaining wall? There’s about 10 metres at this site. How many people are working today?” Mr Lin responded: “Buy 30 metres”.
[94] On the one hand then, there is a hearsay report prepared 13 months after the incident which states that the authors could not locate the outlets for the drainage coil. There are no outlets visible in a photo taken at this time. There is a second hearsay report prepared four years after the incident which also concludes that there is no evidence of drainage in the retaining wall. Neither report writer says that they undertook any excavations to determine if the coil was buried underneath the earth.
[95] On the other hand, there is Mr Lin’s evidence that he did install the coil and the WeChat message at the time which records Mr Lin instructing Mr Hu to buy 30 m of drainage coil for the retaining wall.
[96] I also note that the quotation for the remedial works includes removing all existing clay behind the existing retaining wall, removing damaged planks, scoria and
drain coil and constructing a new retaining wall. As this work has now been completed, it should have been possible for Mr Hu to adduce evidence from the contractor who completed the works confirming whether there was drainage coil installed underneath the clay and scoria in place. Mr Hu has chosen not to put forward this evidence.
[97] In the absence of any direct evidence from someone who personally viewed the retaining wall, I cannot conclude that it is more likely than not that the drainage coil was not laid or was laid incorrectly.
[98] Therefore, Mr Hu has not established that Seventeenth breached the implied warranty to carry out the work according to the building consent.
Did the defendants owe Mr Hu a duty of care?
[99] As I have found Mender liable for breach of contract, I am not required to consider the alternative claim in negligence. The focus of the negligence cause of action is on Mr Ma.
[100] The first issue is whether Mr Ma owed Mr Hu a duty of care and if so, what the content of that duty is.
[101] A builder has a personal duty of care to a building owner to meet the standards of a reasonable builder when engaging in building work, whether they are an employee, a director of company or are self-employed.14 If a director of a building company has personal control over the building operation, they could be personally liable.15 In Morton v Douglas Homes Ltd, Hardie Boys J formulated what is now known as the “degree of control” test:16
The relevance of the degree of control which a director has over the operations of the company is that it provides a test of whether or not his personal carelessness may be likely to cause damage to a third party, so that he becomes subject to a duty of care. It is not the fact that he is a director that creates the control, but rather that the fact of control, however derived, may create the duty. There is therefore no essential difference in this respect between a
14 Palmer v Hewitt Building Ltd, above n 2, at [55].
15 Body Corporate 202254 v Taylor [2008] NZCA 317, [2009] 2 NZLR 17 at [125]–[128].
16 Morton v Douglas Homes Ltd [1984] 2 NZLR 548 (HC) at 595.
director and a general manager or indeed a more humble employee of the company. Each is under a duty of care, both to those with whom he deals on the company’s behalf and to those with whom the company deals in so far as that dealing is subject to his control.
[102]In Body Corporate 202254 v Taylor, Chambers J adopted this statement:17
The law in New Zealand is clear that if a builder carelessly constructs a residential building and thereby causes damage, the owners of the residential building can sue the builder in negligence. (I ignore for the present what kinds of damage the builder can be liable for; in the present case, there is no dispute that the damage the appellants have sustained is damage of a kind for which the New Zealand law of negligence will provide compensation.) That is really the long and the short of it. If Mr Taylor were self-employed, no one would have a moment’s doubt about the propriety of the appellants making the above allegations against him. It should make no difference whether or not he was employed at the time he allegedly did these careless things. The only relevance of his being employed is that his employer or employees may be vicariously liable for his tort committed in the course of employment… He and the employer would be joint tortfeasors.
All of this was stated with admirable clarity by Hardie Boys J in Morton v Douglas Homes Ltd [1984] 2 NZLR 548.
[103] Subsequently, in Stephens v Barron, the Court of Appeal reiterated that the liability arises from the personal actions of the individual, not from their position as director or employee of the company entering the contract.18
[104] Mr Hu claims that Mr Ma owed him a duty of care because he personally assumed responsibility for the work that he and his staff performed at Mr Hu's property. He relies on Mr Ma’s evidence that he was present on the worksite “most of the time” for periods ranging from “10 minutes to two hours.” While on site, he directly engaged with both Mr Hu and his employees “about the site condition”. Mr Ma confirmed he was “responsible for staff on site” and that he “supervised the work”, including specifically supervising work on the retaining wall. Mr Ma also admitted that he frequently performed work himself, stating he “often” drove the digger.
[105] I agree that because of Mr Ma’s control over the physical work of backfilling the retaining wall he could be liable to Mr Hu, if he or his staff performed that work carelessly and in so doing caused actual or prospective damage.
17 Body Corporate 202254 v Taylor, above n 15, at [125]–[126] (citation omitted).
18 Stephens v Barron [2014] NZCA 82 at [27]–[32]. See also Dobbe v Taylor, above n 3.
[106] However, Mr Hu’s claim is not that Mr Ma or other Mender staff performed the retaining wall earthworks carelessly; it is that they did not use the fill specified in the building consent. Mr Hu’s primary claim, which I have accepted, is that Mender was obliged by the contractual warranty to conduct the earthworks in conformity with the building consent. Here, Mr Hu contends that Mr Ma owed a comparable duty, and that by failing to perform the work according to the building consent, Mr Ma breached his duty of care and caused Mr Hu loss.
[107] That claim is misconceived. As Chambers J said in Body Corporate 202254 v Taylor, contract and tort involve conceptually different claims.19 There is no duty in tort to take reasonable care to perform a contract.20
[108] A builder’s duty of care is not defined as being to conduct building works that comply with the construction contract or the building consent. A builder’s duty of care is to meet the standards of a reasonable builder which typically means to conduct building works that comply with the standards set down by the Building Code.21 The nature of the duty reflects the rationale for imposing a personal duty of care on a builder — so that building owners have a remedy when a building is badly built causing prospective or actual damage, and accordingly loss.22
[109] Departure from the contract or the building consent might be relevant to a claim that a builder has breached a duty of care, but that departure does not define the duty. As Cooke J said in Palmer v Hewitt:23
Departure from the contract, or departure from the consent, might still be relevant to an allegation that the builder failed to build in accordance with the standards of a reasonable builder. That is because the consent is a means to an end, and the end is compliance with the sound building standards set by the Code. But a departure from the contract or the consent neither defines the duty, nor establishes a breach of it.
19 Body Corporate 202254 v Taylor, above n 15, at [130]–[136].
20 Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 (CA) at [66].
21Palmer v Hewitt Building Ltd, above n 2, at [73]; Minister of Education v H Construction North Island Ltd [2018] NZHC 871.
22 Palmer v Hewitt Building Ltd, above n 2, at [74].
23 At [75].
[110] Here, Mr Hu contends that Mr Ma was negligent because the earthworks did not comply with the building consent. For the reasons given, the duty on Mr Ma is not defined with reference to the building consent. Mr Ma’s duty is to meet the standards of a reasonable earthworks contractor. Mr Hu has not adduced any expert evidence to establish what the standards of a reasonable earthworks contractor are; and whether a reasonable earthworks contractor would know that a retaining wall of this kind should be filled with polyrock rather than clay.
[111] Mr Ma’s role was limited to moving earth and supervising his staff moving earth, on the instructions of others. The limited scope of Mr Ma’s role is illustrated by the fact that Mender was paid a mere $18,000 for all the work it undertook for Mr Hu (including the lower slope earthworks). Mr Ma did not have visibility or control over whether the work on site complied with the building consent. Mr Hu, who held the building consent drawings, did not tell Mr Ma that the consent specified polyrock fill and he did not share the complete set of plans with Mr Ma.
[112] In these circumstances, I am not persuaded that by backfilling the retaining wall with clay, Mr Ma failed to meet the standards of a reasonable earthworks contractor.
Did Mender’s breach of warranty cause the wall to fail?
[113] Mr Hu’s case is that the retaining wall failed for three reasons, in combination: clay was used as fill rather than polyrock; the drainage coil was not installed or was installed incorrectly; and a fully laden truck drove near the wall exerting a heavy load on the wall.
[114] Mr Hu relies on the evidence of Mr Ma and Mr Lin, who were present on site when the wall failed. Mr Ma acknowledged under cross-examination that polyrock is a light polystyrene fill that is used as a fill material because it is lighter than earth, which reduces pressure on a retaining wall. Mr Ma also agreed under cross-examination that the earth behind the wall was too heavy, causing the wall to fail.
[115] Mr Lin acknowledged that the purpose of the drainage coil was to relieve pressure on the retaining wall. He also recognised that when the fill gets wet, it gets heavier. When asked whether he had investigated why the wall had bulged, Mr Lin said “I know, because they’re clay — higher than timber, and also I think the big problem is the truck”. As discussed, Mr Lin says that he saw a heavily laden truck in the area a few days before the wall deflected.
[116] Mr Hu also relies on the Markplan and Prendos reports, while accepting that he can only place so much weight on these reports because the defendants cannot cross-examine the reports’ authors.
[117] It is not possible to determine, especially without direct expert evidence, the definitive operative cause of the wall’s failure. In addition to the three potential causes identified by Mr Hu, a fourth potential cause is that the retaining wall was unfinished when the truck allegedly drove over the area. It is evident from the photo and the Prendos report that the upper horizontal boards were not in place. Under cross-examination, Mr Lin said that the retaining wall was unfinished when the truck drove over it. He also said that there was “no concrete slab to cover the earths or clays area when the rain”.
[118] I am satisfied that it is more likely than not that the heavy clay fill contributed to the failure of the wall. The immediate cause of the failure is likely to have been the fully laden truck driving near the wall. It is unknown whether other causes — such as inadequate drainage, the absence of the upper horizontal boards, or the fact that the area was unfinished with the clay exposed to the elements — also contributed.
Did Mr Hu contribute to the wall’s failure?
[119] The Building Act provides for the specific remedies available for breach of the implied warranties.24 If the breach can be remedied, the client may require the building contractor to remedy the breach.25 If they refuse or neglect to do so, or do not succeed in doing so within a reasonable time, the client may have the breach
24 Sections 362L–362P.
25 Section 362M.
remedied by someone else and recover the costs from the building contractor or cancel the contract.
[120] In addition to this, the client may obtain damages for any loss or damage resulting from the breach (other than loss or damage through reduction in the value of the product of the building work) that was reasonably foreseeable as liable to result from the breach.
[121] To recover the cost of rebuilding the deflected wall from Mender, Mr Hu must prove that the damage to the wall resulted from Mender’s breach of warranty (failure to ensure that the fill was consistent with the building consent) and that it was reasonably foreseeable that the wall would deflect if the building consent design was not followed. This brings us back to the question of causation. I have concluded that Mender’s breach is likely to have contributed to the wall’s failure by increasing the load. But it is unclear what other factors, such as the truck, inadequate drainage, or the fact that the wall and driveway area were unfinished, also contributed.
[122] A building contractor is not liable under sections 362H to 362R for any defect in a building or breach of warranty to the extent that the defect or breach is caused by the act or omission of another person. The onus is on the building contractor to prove that the defect or breach was caused by another.
[123] Relevant here are Mender’s affirmative defences that Mr Hu was careless and failed to mitigate his loss by:
(a)failing to give Mr Ma a full copy of the consented plans despite being asked for them;
(b)failing to draw Mr Ma’s attention to his exchange with Mr Lin about polyrock;
(c)agreeing to Mender filling the retaining wall with clay that was supplied at no cost to him;
(d)failing to have the retaining wall inspected before having it filled in breach of his resource consent; and
(e)doing nothing about the retaining wall for four years.
[124] Mr Jeffs submits that Mr Hu was a mere baker and was not the controlling force behind the project, managing access to the consent drawings and otherwise directing the site. He submits that in contrast, Mr Ma and Mr Lin were experienced construction professionals who knew it was important to review building consent drawings.
[125] In my assessment, Mr Hu bears considerable responsibility. He chose not to engage a head contractor but contracted directly with multiple contractors for specific work, including the defendants. He did not arrange a project manager or a site manager despite the complexity of building two dwellings on a steeply sloping site. There does not appear to have been anyone taking overall responsibility for the building project or the site, other than Mr Hu, who was clearly out of his depth.
[126] Further, Mr Hu did not give Mr Ma the complete set of plans when asked. I consider it more likely than not that Mr Hu was aware that the plans specified a layer of polyrock under the driveway. He withheld that information from Mr Ma. According to Mr Lin, Mr Hu decided not to use polyrock because it was too expensive.
[127] Mender’s liability for damages must be reduced to reflect Mr Hu’s contribution to its breach of warranty and the fact that Mender’s breach was only one possible cause contributing to the failure of the wall. I consider it appropriate that Mender is held responsible for one-third of the wasted costs and cost to rebuild the wall of
$176,746.66. This amounts to $58,915.55.
EARTHWORKS CLAIM
The facts
[128] After completing the earthworks for the retaining wall and foundations in late July 2018, Mender began levelling off and contouring the steeply sloped eastern and
south-eastern parts of the section. This involved bringing additional fill from other sites onto the area.
[129] During August 2018, while these earthworks were taking place, the weather deteriorated which resulted in the area becoming wet and softening the soil. Mender’s digger became stuck and damaged a small section of trees in the forested area at the bottom of the slope in what is, for the purposes of the District Plan, a significant ecological area (SEA). Additionally, as the silt fence in place was inadequate, and there was no fence at the bottom of the slope where discharge was most likely, earth slipped into the SEA, damaging the immediate native bush area and stock proof fence.
[130] These incidents came to the attention of Auckland Council who inspected the site on 24 August 2018. Mr Hu was present during the site visit; Mr Ma was not. A Council officer, Ms Shaw, reported:
Considerably more earthworks have been done than the permitted volume of 606m3 over an area larger than the permitted 927m3. This is not in accordance with the approved Site Management Plan.
No notification (to the best of my knowledge) was given to council that earthworks were beginning on site
…
Due to the lack of erosion and sediment controls on the eastern boundary, sediment has been discharged from the site into a covenanted Significant Ecological Area (SEA) on the property. There has also been some damage to trees within the SEA and fence has been damaged.
[131] On 27 August 2018, the Council issued Mr Hu with an infringement notice for inadequate erosion and sediment controls in contravention of conditions 1 and 7 of the resource consent and the Auckland Unitary Plan (AUP). Mr Hu was fined $300.
[132] Mr Hu attempted to remedy the noncompliant silt fence. On 27 August, Mr Hu sent photographs of the repairs to the Council inspector; he was informed that the fence was inadequate as the fabric had not been dug into the ground and there was no silt fence at the bottom of the slope where discharge was most likely. On 11 September 2018, the Council officer issued him with an abatement notice him to:
(a)install appropriate sediment and erosion controls;
(b)provide a Remedial Action Plan written by a suitably qualified professional demonstrating how the earthworks were to be completed according to Mr Hu’s resource consent;
(c)remove debris and unconsented structures from the root zone of the vegetation in the SEA;
(d)commission a planting plan by a qualified ecologist to remedy the damage to the SEA; and
(e)reinstate the stock proof fence.
[133] On 17 September 2018, Mr Hu emailed Ms Shaw with further photos saying that “We have since dug the fabric into the ground”. Ms Shaw advised Mr Hu that the silt fences were still within the dripline of the SEA vegetation and needed to be removed and replaced with new fences built to best practice outside the vegetation root zone.
[134] On 9 October 2018, after Mr Hu informed the Council that he had not complied with the abatement notice, Mr Hu was served with another infringement notice and fined $750.
[135] By November 2018, Mender had completed its contouring work on the south-eastern sloping section of the site. Mender had also backfilled the upper foundations and removed some earth out of the retaining wall area. Mender left the site.
[136] Auckland Council officers conducting multiple site visits through November and December 2018.
[137] In January 2019, Mender returned to lay topsoil on the slope. Council officers became aware of this. On 17 January 2019, they undertook a site visit and observed a truck delivering topsoil to the site. Mr Hu was present and confirmed that several trucks of soil had been delivered to the site.
[138] The Council issued another abatement notice to Mr Hu on 18 January 2019, requiring him to immediately cease all earthworks and importing any fill. The notice recorded that Mr Hu had already been warned that he had exceeded the area and volume of earthworks limits in his resource context. The notice stated that the earthworks contravened s 9(3) of the Resource Management Act 1991 (RMA) and the AUP. The Council officer also called Mr Ma and required him to stop work.
[139] Mr Hu then embarked on the remediation program required by the abatement notice. Mr Hu engaged a geotechnical engineer to assess slope stability and hired various specialists including surveyors, ecologists and fence builders. By March 2019, the Council recorded full compliance with the resource consent.
[140] Nonetheless, the legal consequences of the earlier breaches continued. On 10 June 2019, following interviews with Auckland Council, Mr Hu was charged with:
(a)between 29 November 2018 and 15 April 2019, breaching s 9(3) and 338(1)(a) of the RMA by permitting earthworks exceeding the permitted volumes without a resource consent; and
(b)on or before 15 April 2019, breaching the resource consent and the 18 January 2019 abatement notice which required all earthworks to cease.
[141] On 10 June 2019, Mr Hu was charged with contravening the first abatement notice issued on 11 September 2018.
[142] On 19 September 2019, Mr Hu was charged with, on or about 30 May 2019, permitting earthworks to occur in contravention of the January 2019 abatement notice.
[143] In total, Mr Hu faced three charges for not complying with the abatement notices and two charges for breaching the RMA by permitting earthworks exceeding the limits for earthworks in the AUP without a resource consent.
[144] Mender and Mr Ma were also charged for the RMA offences. In their case, the charge was for “using” the land in breach of the RMA rather than “permitting” the land to be used in breach of the RMA.
[145] In February 2020, the District Court granted an enforcement order against Mr Hu requiring him to, within 30 working days:
(a)provide a site investigation plan from a suitably qualified expert on the fill placed on site;
(b)remove the pellet wall and chicken coop from the SEA;
(c)provide a planting plan to remedy the damage to the SEA; and
(d)reinstate the stock proof fence.
[146] Mr Hu did not comply with all aspects of the enforcement order within the 30-day timeframe.
[147] Mr Hu, Mender and Mr Ma each pleaded guilty to the charges against them. On 28 May 2020, they were sentenced by the District Court.
[148] Mr Hu was ordered pay a fine of $37,500 plus costs. Mr Ma was convicted and discharged, and Mender was fined $12,000 plus costs.
[149] On 26 May 2020, Mr Hu applied for retrospective approval for the unconsented earthworks and removal of trees within the SEA. Consent was also sought for the proposed remedial works, including installing counterfort drains to improve stability.
[150] On 15 June 2020, Auckland Council required further information under s 92 of the RMA. The Council also required an application for a s 221 consent notice variation.
[151] On 18 December 2020, Auckland Council granted the resource consent. The Council also determined that a wastewater discharge consent was required which
was granted, subject to the recommended monitoring and compliance with the consent conditions.
The parties’ respective positions
[152] Mr Hu claims that without his consent, between July 2018 and January 2019, Mr Ma and Mender disposed of approximately 4,366 m2 of “excess earth” over an area of 3,682 m2 on his property. He says that the fill contained construction waste.
[153] Further, Mr Hu claims that Mr Ma and Mender failed to ensure that the earthworks on the lower slope did not lead to any uncontrolled instability or collapse; and allowed his digger to fall off the slope twice in or around August 2018.
[154] Mr Hu claims, that in doing so, Mr Ma and Mender breached the statutory warranties under the Building Act and their duty of care. He claims damages of
$364,891.80 for the remediation costs, compliance costs, fines and various services.
[155] Mr Ma and Mender say that the Building Act warranties do not apply to the earthworks Mender was contracted to do, and they did not owe Mr Hu a duty of care. If they did, they say that they did not breach the warranties or duty of care and further, that Mr Hu’s losses were not caused by their actions.
[156]Therefore, the issues to determine are:
(a)Do the statutory warranties apply to this work?
(b)Did Mender breach the statutory warranty?
(c)Did the defendants owe Mr Hu a duty of care?
(d)If so, did they breach that duty of care?
(e)Did their breaches (if any) cause Mr Hu’s losses?
Do the statutory warranties apply to this work?
[157] Mr Hu submits that the statutory warranties apply to the earthworks undertaken by Mender on the lower part of the section. As above, the Act does not distinguish between works within a contract. Part 4A applies or it does not. Therefore, in this case, it applies to all the work Mender contracted to do for Mr Hu at his property.
[158] Alternatively, Mr Hu submits that the works are associated with the construction of a building, in that they were required to stabilise and establish the slope below the dwellings. As above, managing the siteworks is a necessary and important part of protecting the household unit itself. The purpose of the legislation supports a broad interpretation to protect homeowners and promote high building standards.
[159] The defendants say that the statutory warranties do not apply, for similar reasons as those given before. Mender is criticised for two things: dumping material on site; and moving earth on the slope at the lower part of the property. They submit that neither are “building work” in relation to a household unit. Bringing material on to site is not, of itself, building work. The work done to stabilise and terrace the sloping part of the section was not, in any way, connected with the construction of any household units. In fact, if Mr Hu’s evidence is to be believed, he did not want anything done with the lower slope at all other than for Mender to cover up its “rubbish”.
[160] There is some force to the defendants’ submission. Mr Hu’s case is that Mr Ma brought excess earth onto the site and dumped it on the sloped area without his consent. In other words, there was no agreement between them in relation to the dumping of the earth. If that is the case, there was no building contract in relation to the dumping to which the statutory warranties can apply.
[161] But Mr Ma contradicts Mr Hu on this point. Mr Ma says that he brought on the extra fill under Mr Hu’s direction and on the recommendation of Mr Hu’s “designers”. Mr Hu said the same in his interview with Council officers. He says that by bringing material on from other nearby sites, Mr Hu was able to save money that he would otherwise incur for the supply of engineered clay. The extra fill was needed to enable Mender to contour and terrace the sloped area. Therefore, the bringing on of material was necessary for the contouring work.
[162] The question is whether this contouring work was “building work” in terms of the Building Act, to which the statutory warranties apply. While “building work” includes “site work” which in turn includes “earthworks, preparatory to, or associated with the construction, alteration, demolition or removal of a building”, the lower section earthworks were not as closely connected to the construction of the house and minor unit as the works for the retaining wall. The earthworks were not specified in the plans submitted for the building consent or the resource consent, which were limited to the earthworks within and immediately around the house platforms and the driveway.
[163] Against that, it would be an odd result if the warranties applied to some works within a building contract and not others, when all the work is associated, in the broadest sense, with the construction of a residential dwelling. Furthermore, the purpose of Part 4A of increasing consumer protections for residential building work favours a broad reading of the statute.
[164] I conclude therefore that the statutory warranties do apply to the contract to carry out these lower slope earthworks. This contract was a continuation of the contract between Mr Hu and Mender which commenced with the retaining wall earthworks.
Did Mender breach the statutory warranties?
[165] Mr Hu’s main claim is that, by undertaking earthworks on the lower slope that exceeded the volume and area limits in the resource consent, Mender breached the implied warranties that:
(a)the building work will comply with all laws and legal requirements, including, without limitation, the Building Act and the regulations; and
(b)the building work will be carried out with reasonable skill and care.
[166] There can be no doubt that Mender breached the implied warranty that the work comply with all laws and legal requirements. Mr Hu’s resource consent only
permitted earthworks necessary for the construction of the principal house and unit up to maximum volume and area limits. The resource consent allowed him to:
[…] construct a three-storey principal housing unit (PHU) located approximately 10m to the northern and southern boundaries and a single storey Minor Household Unit (MHU) located approximately 6.8m to the east of the PHU with associated earthwork over a total area of 927m2 with a total volume of 606m3 (cut and fill).
[167]The decision recorded:
To facilitate the development and form a level building platform for the proposed PHU, MHU in associated driveway, earthworks are required over a total area of 927m2 with a total volume of 606m3 (cut and fill). This is a restricted discretionary activity.
[168] The “site management plan” (LO2) approved with the consent depicts the areas that make up the total earthwork area permitted by the resource consent of 925 m2 and 606 m3. The earthworks are all either inside or immediately surrounding the building platforms. The plan records that the site earthworks for the foundation and retaining wall and stormwater drainage were expected to take 10 days. The resource consent did not permit earthworks outside these areas or beyond the prescribed limits. Nor did it permit Mr Hu to bring fill onto the site.
[169] Mr Hu also claims that Mender breached the warranty to exercise reasonable skill and care by failing to ensure that the earthworks on the lower slope did not lead to any uncontrolled instability or collapse; and allowing a digger to fall off the slope twice in or around August 2018.
[170] Mr Ma admits that his digger became stuck and fell into the bush area, damaging some trees, in around August 2018. It is also plain that the sediment and erosion control measures in place were inadequate and non-existent at the bottom of the slope, allowing sediment to move into the protected area.
[171] I find that Mender breached the implied warranty to exercise reasonable skill and care by allowing a digger to fall into the trees causing damage and by failing to install appropriate erosion and sediment controls. In relation to the erosion and sediment controls, Mr Hu contributed to this loss because he appears to have taken it upon himself to effect the silt fences.
Did Mr Ma owe Mr Hu a duty of care?
[172] I have already found that Mr Ma owed a duty of care in relation to the tasks that he performed, namely operating the digger and his on-site supervision of the earthworks his staff performed. That extends to the earthworks on the lower slope of the site.
[173] Mr Ma’s duty was to take reasonable care when doing or supervising the earthworks to avoid causing loss to Mr Hu arising out of damage to the property. That included taking reasonable care to avoid earth subsiding or seeping into surrounding areas causing damage, or allowing the diggers to cause damage.
[174] The more significant issue is whether Mr Ma’s duty of care extended to checking whether the lower slope earthworks were permitted under the AUP or by Mr Ma’s resource consent before commencing the work.
[175] Mr Hu’s submission is simply that both Mr Ma and Mender breached their duty of care to Mr Hu for the same reasons as justify finding breaches of the statutory warranties.
[176] As I have said above, there is no duty in tort to take reasonable care to perform a contract.26 The nature of the duty on a builder or contractor is to meet the standards of a reasonable builder or contractor when engaging in the work.
[177] Without more, I am not persuaded that Mr Ma owed a duty to advise Mr Hu whether the lower slope earthworks were authorised by his existing resource consent. Mr Hu has not adduced any expert evidence to establish that a reasonable earthworks contractor would check that the earthworks were permitted by the AUP or a resource consent before commencing work. He does not point to any conduct of Mr Ma that might give rise to such a duty. Again, Mr Ma’s involvement was limited to on-site physical work: driving the digger or supervising his digger drivers. Mr Ma performed this work on the instructions of Mr Hu. Mr Hu held the resource consent. There is no evidence that he gave a copy of the resource consent to Mr Ma or ever discussed it
26 Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd, above n 20, at [66].
with Mr Ma. Mr Hu could not reasonably have relied on Mr Ma to advise him whether the lower slope earthworks were permitted by that resource consent or not.
[178] There is some force to the submission that Mr Hu, who has no building expertise, was entitled to rely on Mr Ma and Mr Lin as experienced contractors. However, as already discussed above, Mr Hu did not engage any professional oversight of the build by way of a site or project manager to ensure the work was compliant. Indeed, it seems Mr Hu and his wife took responsibility for this, engaging subcontractors such as Mender directly. Perhaps the defects which gave rise to this dispute could have been avoided if that professional management was sought. In any event, it cannot then be said that liability should be borne by the defendants for the consequences of this lack.
Did Mr Ma and Mender’s actions cause Mr Hu’s losses?
[179] This is the principal issue. Mr Hu seeks to recover all his costs associated with complying with the abatement notices and enforcement order, the criminal prosecution, remediation work and obtaining a resource consent to retrospectively authorise the unconsented earthworks.
[180] To recover these losses, Mr Hu must establish that they were caused by Mender’s breaches of the statutory warranties and/or Mr Ma’s negligence.
[181] Mr Hu’s statement of claim claimed that his costs amounted to $1,658,000. However, in closing, he claimed for costs totaling $364,891.80. Mr Jeffs provided a table setting out the costs ultimately claimed with Mr Hu’s closing submissions. Mr Hu has provided the relevant notices, awards, invoices and quotes from contractors.
[182] To determine what if any losses were caused by Mender’s breaches, I have grouped the costs in the table into the following categories:27
27 See Schedule A to this judgment.
(a)Legal costs and fines associated with the infringement notices and charges against Mr Hu for permitting the earthworks and not complying with the abatement notices.
(b)Costs associated with addressing the issues identified in the abatement notices and the enforcement order.
(c)Costs associated with applying for a new resource consent to retrospectively permit the earthworks.
(d)Costs associated with complying with the conditions of the new resource consent.
(e)Costs associated with stabilising and stormwater works in January 2023.
[183] In relation to (a), the fines against Mr Hu and the costs associated with defending the criminal charges against him were incurred due to his own breaches of s 9 of the RMA. Mr Hu was prosecuted for permitting earthworks in breach of the RMA and the AUP without a resource consent. Mender and Mr Ma were prosecuted separately for performing the work in breach of the RMA and AUP. Mr Hu cannot recover the consequences of his own wrongdoing from Mender or Mr Ma. Mender and Mr Ma received their own penalty: Mender was convicted and fined and Mr Ma was discharged without conviction.
[184] In relation to (c) and (d), Mender’s breaches did not cause the costs associated with applying for a new resource consent to retrospectively permit the earthworks, or associated with complying with the conditions of the new resource consent. Mr Hu asked Mr Ma to do the levelling and contouring work on the lower slope. The work made the area more usable for Mr Hu. Amongst other things, he installed a chicken coop on part of the levelled area. Had the earthworks been done in compliance with all laws and regulations, Mr Hu would have obtained a resource consent for the earthworks before work commenced. The costs incurred by Mr Hu to retrospectively authorise the earthworks are not losses flowing from Mender’s breach; rather, they are
costs that Mr Hu would have incurred in any case to meet his obligations as owner of the land under the RMA.
[185] I acknowledge it is possible that the costs associated with obtaining a retrospective resource consent and complying with the conditions of that consent were higher than they would have been had Mr Hu applied for a resource consent before commencing work. I note that the most significant cost claimed in relation to the new resource consent is the cost to install counterfort drains ($114,851.78) to improve the long-term stability of the slope. However, Mr Hu has not framed his claim in this way; he has simply claimed all the costs he incurred applying for a new resource consent, including the fee charged by Auckland Council to process the application ($15,011.47). I have no basis therefore to conclude that he would not have incurred all of these costs had he applied for a resource consent at the outset.
[186] Furthermore, as noted in the application itself, Mr Hu had the option of remediating the area to bring it into compliance with the existing resource consent or to apply for a resource consent to regularise the works. Mr Hu chose the latter option, knowing that there would be costs involved, including installing counterfort drains.
[187] Regarding (e), costs incurred for various works in 2023, Mr Hu has not addressed how these costs are said to have been caused by the earthworks on the lower slope in 2018. Mr Hu also claims these costs from Mr Lin.
[188] In my assessment, the only category of cost potentially caused by Mender and Ma’s breaches are those in category (b). As established above, the evidence revealed four primary failures which resulted in the Council’s enforcement action and Mr Hu’s consequent losses. First, and most significantly, earthworks were undertaken (bringing earth onto the lower slope and contouring the area) without a resource consent. Secondly, not installing appropriate sediment and erosion control measures such as silt fences to protect the SEA, especially in poor weather conditions. Thirdly, Mr Ma’s digger fell into the trees and caused damage to the native trees in the SEA. Finally, there was debris and unconsented structures (a chicken coop) in the root zone of the vegetation.
[189] In relation to the first failure, Mender is liable as it was obliged under the implied warranties to comply with all laws and legal requirements and failed to do so by proceeding with the work without the required consent. However, Mr Hu is also responsible. As the landowner, Mr Hu is obliged to apply for a resource consent for any work on his property that requires consent. Mr Hu knew that there was a restriction on earthworks, and that he should not “destroy the forest” but he otherwise ignored the provisions of his resource consent. When Auckland Council inspected the site and raised issues, rather than pausing work and taking professional advice, he continued. He ignored the abatement notices that required him to stop work.
[190] The other three categories of failure relate to the damage to the SEA which alerted the Council to the non-compliant work and resulted in the enforcement actions. Mender is obliged under the implied warranties to exercise reasonable skill and care when carrying out earthworks. Mr Ma had a duty to take reasonable care when moving earth himself and supervising his staff. That includes taking appropriate measures to ensure that excess and exposed earth does not seep into surrounding areas causing damage. However, Mr Hu also bears responsibility as he took it upon himself to erect the silt fences which proved to be ineffective.
[191] The damage caused by the digger to the native vegetation in the SEA is naturally attributed to Mender and Mr Ma.
[192] Finally, there was debris, a wall made of pellets nailed together, and a chicken coop in the root zone of the vegetation in contravention of the consent. Mr Hu is responsible for the pellet wall and chicken coop, this being his addition to the area.
[193]Applying these conclusions to the costs Mr Hu claims:
(a)On 18 February 2019, Auckland Council issued Mr Hu a debit note ($2,318). Mr Hu states in his evidence that the note related to investigating the breaches of the resource consent. The investigation arose because of the unconsented nature of the work as well and deficiencies in the way that the work was carried out (which resulted in
damage to the SEA). These costs should be shared equally between Mr Hu and Mender or Mr Ma.
(b)Mr Hu claims the costs of engaging a geotechnical engineer (Geo Studio Ltd) that undertook an initial site assessment on 21 January 2019 and prepared a report on the stability of the filled slope dated 25 July 2019 (a total of $4,025). The report concluded that the filled slope shows no obvious visual signs indicating instability but that the fill was prone to creep and settlement over time. The engineers recommended counterfort drains to improve long term stability. These costs arose because of the unconsented deposit of fill onto the slope and therefore should be shared equally between Mr Hu and Mender.
(c)On 16 April 2019, Mr Hu obtained a topographical survey by F-Z Survey Management Ltd ($1,495). Mr Hu says that this was necessary to investigate the issues caused by the fill brought onto the slope. These costs should be shared between Mr Hu and Mender.
(d)Mr Hu acquired a planting plan from Ecology New Zealand Ltd on 31 August 2019 to meet the requirements of the abatement notice by remedying the damages to the SEA ($3,898.50). Again, the damage resulted from the placement of excess fill, inadequate sediment control measures, the accident involving the digger and so liability must be shared equally between Mr Hu and Mender or Mr Ma.
(e)Mr Hu engaged Sitecraft to build a 94m stock proof fence on 9 October 2019 along the boundary with the native bush area ($9,200). Mender or Mr Ma should bear the costs of this as Mr Ma has accepted that the damage was caused by the way the work was carried out.
(f)The enforcement order dated 27 February 2020 required Mr Hu to provide the Council with a site investigation and analysis of the fill on the slope. On 13 March 2020, Engeo Ltd completed a site investigation and analysis. Also, on 3 April 2020, Engeo Ltd prepared an
Environmental Investigation Report regarding the quality of the soil dumped on the site. These costs ($7,935) arose because of the unconsented deposit of fill onto the slope and therefore should be shared equally between Mr Hu and Mender.
[194] I find therefore that Mender is liable to Mr Hu for 50 per cent of these costs namely $9,835.75. Mr Ma is liable, in the alternate, for 50 per cent of the costs relating to the damage to the fence and the SEA, namely $7,708.25.
NUISANCE CLAIM
[195] Mr Hu claims that Mr Lin is also responsible for dumping earth on his property. He says that after July 2018, when Mr Lin bought the neighbouring property, Mr Lin dumped earth and rubbish along the northern boundary between their sites which spilled onto Mr Hu’s property and damaged the stock proof fence on the northeastern boundary of his property.
[196] Mr Hu says that a Mr Zhang, who worked with Mr Lin, fixed part of the fence but a 10 m section remained broken. He says that he has obtained a quote from Sitecraft Ltd for repair of the fence of $3,450.
[197] Mr Hu also says that, in 2023, the dumping of the unstable soil caused cracking and flooding into the area, once again resulting in damage to the stock proof fence. He engaged Blue Craft Services Ltd to temporarily fix these issues, for which a quote of $44,907.50 was provided.
[198] For these losses incurred, Mr Hu claims against Mr Lin compensation for the tort of nuisance. The tort of nuisance provides a remedy for interference with the occupier’s use or enjoyment of land.28 A private nuisance involves a disturbance of rights in land.29 There are two requirements for private nuisance: that there has been
28 Bank of New Zealand v Greenwood [1984] 1 NZLR 525 (HC) at 530.
29 Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185 (HC) at 188.
damage; and the damage resulted from an activity or state of affairs actionable as nuisance.30 Damage caused by earthworks is a classic instance of a nuisance.31
[199] Mr Lin’s evidence on this issue was unclear. He initially denied that he put earth along the northern boundary with Mr Hu but then said that a Mr Zhang put the earth there for Mr Hu. He said that the damage to the stock proof fence was repaired and paid for by Mr Zhang.
[200] By a slim margin, I find that Mr Hu has established that the fence along the northeastern boundary between his and Mr Lin’s property was damaged by dumping of earth by Mr Lin or people engaged by him. He should be paid the cost to repair the fence of $3,450.
[201] As to the quote from Blue Craft Services Ltd for removing soil, building four terraces, a new fence and creating a pad for water tanks, Mr Hu has not proven that these costs were caused by activities of Mr Lin on his property.
LOAN CLAIM
[202] Mr Hu’s pleaded claim is that he loaned Mr Lin a total sum of $117,150 between 2018 and 2019. He pleads that he and Mr Lin agreed that the cost of Mr Lin’s work on Mr Hu’s property would be offset against this loan and that Mr Lin would pay the balance on demand. He claims that the cost of Mr Lin’s contracted work was
$31,375 and therefore the balance owing is $85,775.
[203] Mr Hu’s evidence in chief is not entirely consistent with this claim. He says that he loaned Mr Lin $210,000 between June and July 2018. He confirms that the arrangement was that he would off-set the cost of Mr Lin’s work on his property against the loan repayments. He says that Mr Lin made repayments of around $30,000.
[204] On closing, Mr Hu sought repayment of the amount of $30,000 only, on the basis that Mr Lin acknowledged that he owed this amount in a WeChat message on 26 November 2019.
30 Laws of New Zealand Nuisance (LexisNexis, online ed) at [5].
31 See [8] and n 4.
[205] When this message was put to Mr Lin in cross-examination, he accepted that he had recognised that he owed money to Mr Hu but said that he did so because Mr Hu had threatened him and his family. Mr Lin also said that the acknowledgment was related to his purchase of the neighbouring property from Mr Hu. On 3 July 2018, Mr Hu and Mr Lin entered into a sale and purchase agreement for Mr Lin to purchase the neighbouring property at a price of $880,000. The deposit, which had already been paid on 6 June 2018, was $180,000. The transaction later settled.
[206] There is scant evidence before the Court to prove this claim. There is no written loan agreement. There is no record of the claimed loan advances to Mr Lin, such as bank transfers. There is no record of any repayments by Mr Lin.
[207] Mr Hu’s evidence is that it was agreed that the loan advances would be offset against Mr Lin’s work on the site. That is consistent with the fact that Mr Lin did not send Mr Hu an invoice for Seventeenth’s work until well after the work had finished, on 6 February 2020. However, Mr Hu has not proffered any evidence to show that, after accounting for the cost of work, and any repayments, the balance outstanding is
$30,000.
[208] Under cross-examination, Mr Hu said that Mr Lin’s borrowing and repayments were all recorded in a notebook. Mr Hu has not put that notebook before the Court.
[209] The position is further complicated by the agreement for sale and purchase of the neighbouring property which took place at around the same time and involved several payments from Mr Lin to Mr Hu.
[210] I do not have sufficient evidence before me to find on the balance of probabilities that Mr Lin owes Mr Hu a debt of $30,000. A single WeChat message without context does not suffice.
SEVENTEENTH’S COUNTERCLAIM
[211] Mr Lin advances a counterclaim for the invoice he issued on 6 February 2020 for $100,280. As discussed, the invoice was sent approximately 18 months after the work was completed in 2018, with no prior invoicing for the work.
[212] This counterclaim suffers from the same problem as Mr Hu’s loan claim. First, the invoice is not supported by any contemporary documentation. None appears to exist. Mr Lin stated under cross-examination that he kept no records of work performed by his company, either in this case or generally. When asked how he was able to compile the invoice 18 months later without any records, he confirmed that he did not keep time sheets or records of workers on site. He explained that his practice is to base his invoice calculations on the size of the dwelling and the “labour only base”.
[213] Secondly, it is not possible to determine if this invoice is outstanding when both Mr Hu and Mr Lin acknowledge that there was an unrecorded ledger of sorts between them concerning loans from Mr Hu to Mr Lin, work conducted by Seventeenth for Mr Hu, and payments associated with the sale and purchase of the neighbouring site. Neither party has put forward sufficient information to enable the Court to determine who owes who what. In the case of Mr Lin’s counterclaim, a single invoice issued some 18 months after the event is not adequate proof.
Result
[214]On the retaining wall claim, Mender must pay Mr Hu $58,915.55.32
[215] On the earthworks claim, Mender must pay Mr Hu $9,835.75. Mr Ma is liable, in the alternate, for $7,708.25 of that sum.
[216]Mr Lin must pay Mr Hu $3,450.
[217] Agreement is strongly encouraged as to costs. If this cannot be achieved, the plaintiffs are to file a memorandum not exceeding six pages by 4 July 2025. The defendants are to respond with a memorandum not exceeding six pages by 18 July 2025.
Gardiner J
32 All costs claimed were GST inclusive.
SCHEDULE A: Claims categorised by type of loss
| Item | Date | Amount (incl GST) |
| Category (a): Mr Hu’s legal costs and fines | ||
| Infringement notice | 27 August 2018 | $300 |
| Infringement notice | 9 October 2018 | $750 |
| Legal fees for charges – instructing solicitors | 5 July 2019 | $3,000 |
| Legal fees for charges – Environment Court hearing | 27 May 2020 | $5,750 |
| Legal fees for charges – trial preparation | 19 February 2020 | $17,595 |
| Court fine | 29 May 2020 | $50 |
| Court fine | 29 May 2020 | $7,793 |
| Court fine | 29 May 2020 | $243 |
| Court fine | 30 May 2020 | $30,243 |
| Category (b): addressing issues identified in abatement notices and enforcement order | ||
| Auckland Council site visit inspection fee | 18 February 2019 | $2,618 |
| Geo Studio Ltd site assessment | 22 January 2019 | $345 |
| FZ – Survey topographical survey | 16 April 2019 | $1,495 |
| Geoconsult site stability report | 25 July 2019 | $3,680 |
| Ecology NZ site investigation and planting plan | 31 August 2019 | $3898.50 |
| Sitecraft cost to build stock proof fence | 9 October 2019 | $9,200 |
| Engeo field work, laboratory analysis and preparation | 13 March 2020 | $3,967.50 |
| Field work, laboratory analysis and preparation | 03 April 2020 | $3,967.50 |
| Category (c): applying for a new resource consent | ||
| Boundary Consultants - resource consent application and land use consent | 17 December 2019 | $5,290 |
| Boundary Consultants - resource consent application and land use consent | 18 May 2020 | $3795 |
| GWE Consulting Engineers - fieldwork and wastewater – irrigation field design | 31 August 2020 | $7,496.16 |
| GWE Consulting - stormwater assessment report | 11 September 2020 | $2,484 |
| GWE Consulting - wastewater irrigation field design and stormwater assessment report | 17 September 2020 | $3,001.50 |
| Ecology NZ s 92 – Ecological Impact Assessment | 30 September 2020 | $9,075.22 |
| GWE Consulting | 13 October 2020 | $475.41 |
| Ecology NZ - Ecological Management Plan update | 31 October 2020 | $626.75 |
| Ecology NZ | (undated) | $8,251.41 |
| Auckland Council fee for processing resource consent application | 9 February 2021 | $15,011.47 |
| Category (d): complying with new resource consent dated 18 December 2020 | ||
| GWE Engineering – Geotechnical field work for subsoil slope stability report | 11 March 2021 | $3,235.41 |
| GWE Engineering – further geotechnical field work | 12 March 2021 | $1,259.94 |
| Boundary Consultants Project management services | 24 March 2021 | $920 |
| GW Engineering – Subsoil/slope stability assessment report | 30 March 2021 | $1,983.75 |
| NZ Biosecurity Services – Planting | 12 July 2021 | $4,463.50 |
| MDL Civil and Engineering- Counterfort drain installation | 8 October 2021 | $114,851.78 |
| Ecology NZ – assessment of Kauri in SEA for consent conditions | 25 November 2021 | $2,451 |
| Reflection Wastewater Treatment Systems- installation of irrigation | 10 March 2022 | $4,427.50 |
| Category (e): January 2023 event | ||
| Bluecraft Services – landscaping four terraced areas, install silt fence, pad for water tank, new stormwater overland flow path, lay geocloth | 14 April 2023 | $44,907.50 |
| New water tank base | (undated) | $36,300 |
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