Kwak v Park - [2016] NZHC 530

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001559 [2016] NZHC 530

UNDER
the Weathertight Homes Resolution

Services Act 2006

IN THE MATTER

of an appeal from the Weathertight Homes
Tribunal

BETWEEN

JOONG SONG KWAK AND HYE SOOK KWAK

Appellants

AND

HYUN SU (MARIO) PARK Respondent

Hearing: 8 December 2015

Appearances:

T R Rainey and J P Wood for appellants
R Hesketh and T Soong for respondent

Judgment:

24 March 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 24 March 2016 at 11:45 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Rainey Law, Auckland, for Appellants
WJ Spring, Solicitor, Takapuna, for Respondent

Counsel: RM Hesketh, Barrister, Devonport, for Respondent

KWAK & ANOR v PARK [2016] NZHC 530 [24 March 2016]

Introduction

[1] Joong Song Kwak and his wife, Hye Sook Kwak, appeal against a determination of the Weathertight Homes Tribunal dated 16 June 2015, which dismissed their claim against Hyun Su (Mario) Park, the builder of their leaky home. Although he was found not liable, Mr Park cross-appeals against the Tribunal’s finding that, in addition to being the builder, he was also the developer of the house.

Factual background

[2] The respondent, Mr Park, and his wife emigrated from Korea in 1995. Unable to find work in his previous field as a researcher for a chemical company, Mr Park retrained first in computing and then as a pilot. He did not find work in either of these fields. He worked installing blinds for approximately 15 months before becoming self-employed as a handyman. Mr Park has no qualifications as a builder, nor did he have any building experience apart from his handyman work.

[3] In August 1998, Mr Park and his wife bought a bare section of land at 27 Ian Marwick Place, Birkenhead, Auckland. They decided to build themselves a house on the land. They engaged Ross Bell of Future Plans Limited to design a three-level house on the steeply sloping section.

[4] On 27 July 1999, Mr Bell applied for a building consent on behalf of

Mr Park. A building consent was issued by the North Shore City Council on

22 October 1999. Mr Park and his wife lived in rental accommodation while Mr Park then worked full-time building the house. Mr Park had never built a house before.

[5] Mr Park also engaged a private building certifier, A1 Building Certifiers Limited, to inspect and certify the building work he undertook in accordance with the building consent. Various inspections of the building work were carried out by A1 Building Certifiers Limited between November 1999 and June 2000. Following a pre-lining inspection on 28 June 2000, Mr Park and his family moved into the house in July 2000. Mr Park continued work on the house, which was completed

before the end of the year, although a code compliance certificate was not obtained at that time. He says that he and his wife decided to sell the house in July…

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 Kwak v Park

Details

AGLC: Kwak v Park [2016] NZHC 530
Case: [2016] NZHC 530
Decision Date: 24 March 2016

CaseChat Overview and Summary

The appeal by Joong Song Kwak and his wife, Hye Sook Kwak, against a determination of the Weathertight Homes Tribunal which dismissed their claim against Hyun Su (Mario) Park, the builder of their leaky home, was allowed. The Tribunal had found that Mr Park was not liable as his acts or omissions as builder were limitation barred. However, the court found that the completion of producer statements by Mr Park within ten years of the claim being brought meant that the claim was not limitation barred. Further, the court found that the relationship between Mr Park, as the author of the producer statements, and Mr and Mrs Kwak, as the subsequent purchasers, was sufficiently proximate for a duty of care to arise. The appeal by Mr Park against the Tribunal’s finding that he was a developer was dismissed. The Kwaks were awarded the full amount of the quantum of damages specified in the determination of the Tribunal.

Orders