Johnson v Armstrong - [2017] NZHC 949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2129 [2017] NZHC 949

BETWEEN
ANTHONY CHARLES BENJAMIN

AND KATHERINE JANE JOHNSON Plaintiffs

AND

NIGEL ROBERT ARMSTRONG First Defendant

STEPHEN WOOLER Second Defendant

PETER ALLAN DEANE Third Defendant

CONTINUED OVERLEAF

Hearing: 9 May 2017

Appearances:

A Ho and K R Narayaran for sixth defendant
M Lawes for plaintiff/respondent

Judgment:

12 May 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
12.05.17 at 3.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JOHNSON & ANOR v ARMSTRONG & ORS [2017] NZHC 949 [12 May 2017]

ANDDEANE CONSULTANCY LIMITED Fourth Defendant

AUCKLAND COUNCIL Fifth Defendant
NEW ZEALAND CERTIFIED BUILDERS ASSOCIATION INCORPORATED
Sixth Defendant
CBL INSURANCE LIMITED Seventh Defendant

Background

[1] In March 2014 the plaintiffs entered into an agreement with a company called Rok Build Limited to construct a dwelling at 1473 Whangaporaoa Road, Army Bay. Unfortunately Rok Build Limited (“RBL”) was subsequently placed in liquidation. The plaintiffs allege that the construction of their house property was carried out in a defective and negligent way.

[2] They then issued proceedings in 2016. One of the parties they joined to the proceeding was the sixth defendant, New Zealand Certified Builders Association Incorporated (“New Zealand Certified”).

[3] In their statement of claim the plaintiffs say the following:

13.As [the] house was to be their “dream house”, their retirement home and a very significant financial commitment, Mr and Mrs Johnson wished to ensure that they would use a reputable builder who would be unlikely to liquidate the building company used following construction of their home. The Mr and Mrs Johnson (sic) therefore did considerable research into builders. The research eventually brought them to the website (the “website”) of the sixth defendant, [certified builders].

…

15.1 The website which held the address of stated, on its ‘homepage’:

16.1 “One of the best guarantees in the business” and

16.2 “One of the most comprehensive independent guarantees
that there is”.

…

16.On the basis of the information provided on the website Mr and Mrs Johnson specifically made the decision to use Rok Build Limited because they were local builders who were Certified Builders / members of the, then, Certified Builders Association, and because of the guarantees provided by the Certified Builders Association.

[4] They allege that the form of the contract with RBL was one provided by the sixth defendant. They plead that:

18.The Contract was entered into using the “full build building contract” form provided by [the sixth defendant] with the reference number 0308/03, and was completed by the parties’ hand writing the relevant contact details into the preprinted form

….

19.3Clause “13.7” The Builder shall apply for a Homefirst Guarantee prior to commencement of the Work”

[5] As it turns out, no guarantee ever came into existence in regard to the construction of the house in this case. The plaintiffs claim that they were misled about the existence of a Homefirst Guarantee. They seek damages…

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 Johnson v Armstrong

Details

AGLC: Johnson v Armstrong [2017] NZHC 949
Case: [2017] NZHC 949
Decision Date: 12 May 2017

CaseChat Overview and Summary

The plaintiffs, Anthony and Katherine Johnson, sued the sixth defendant, New Zealand Certified Builders Association Incorporated, for allegedly misleading them about the existence of a Homefirst Guarantee. The sixth defendant applied for summary judgment. The court had to decide whether the statements made by the sixth defendant amounted to misleading or deceptive conduct under the Fair Trading Act 1986 (FTA) and whether the sixth defendant owed a duty of care to the plaintiffs in relation to the statements made on its website and in its standard form building contract. The court found that the statements made by the sixth defendant did not convey that a Homefirst Guarantee would be automatically provided to the plaintiffs upon engaging a member of the Certified Builders Association. The court also found that there was no duty of care owed by the sixth defendant to the plaintiffs in relation to the statements made on its website and in its standard form building contract. The court granted summary judgment in favour of the sixth defendant and ordered the parties to make submissions on the questions of costs.

Orders