Linehan v Thames-Coromandel District Council - [2023] NZCA 288

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA17/2022
[2023] NZCA 288

BETWEEN	BRIAN JOSEPH LINEHAN SHANNON JAMES WALSH AND ROSS DOUGLAS BLAIR AS TRUSTEES OF THE ELIZA TRUST Appellants
AND	THAMES-COROMANDEL DISTRICT COUNCIL Respondent

Hearing:	11 and 12 October 2022
Court:	Cooper P, Collins and Katz JJ
Counsel:	T J Rainey and V A Whitfield for Appellants D J Neutze and G E Hughes for Respondent
Judgment:	12 July 2023 at 10:30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

TABLE OF CONTENTS

Introduction

Factual background

The 2010/2011 remedial works
The 2016 remedial works

Scope of remediation work required

The High Court judgment

Approach on appeal

Issues on appeal

Issue one: Was the Judge correct to find that the only defects the Council was liable for were the defects in the construction of the balconies?

Did the Judge misunderstand the scope of the duty of care owed by the Council?
Alleged breach as to the ProtectoWrap on parapets
Alleged breach as to roofing defects
Alleged breach as to tanking defects
Alleged breach as to cladding defects

Conclusion

Issue two: What was the scope and effect of the Council’s concession on liability?

Issue three: Is the targeted repairs scope the appropriate basis for assessing damages?

Issue four: Was the Council’s negligence in 2016 a substantial and material cause of the need to undertake further remedial work to the property?

Issue five: Should the trustees have been awarded stigma damages?

Issue six: Were the trustees contributorily negligent?

Did Dr Linehan know that Mr Barber was someone who cut corners?
What was Dr Linehan’s involvement in the decision to direct fix the tiles?
What was the significance of Dr Linehan’s failure to retain the pre-purchase report?
What is the significance of the trustees’ delay in addressing weathertightness issues?
Did Dr Linehan undertake insufficient due diligence when engaging Mr Barber?
Did Dr Linehan fail to have proper regard to Ms Simpson’s plans?
Did Dr Linehan fail to obtain appropriate expert advice and instead simply rely on Mr Barber?

Conclusion regarding contributory negligence

Issue seven: What is the appropriate reduction in damages to reflect the trustees’ contributory negligence?

Result

Introduction

In March 2003 the trustees of a trust settled by Dr Brian Linehan purchased a property near Whitianga.[1] A house had been constructed on the property in 1997. Dr Linehan was aware at the time of purchase that the house suffered from weathertightness issues that would have to be addressed at some time in the future, although he did not understand the issues to be major.
[1]The property was originally purchased by the Hilldon Trust. On 28 March 2013 the property was transferred from the trustees of the Hilldon Trust to the trustees of the Eliza Trust, a related trust of which Dr Linehan…

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.

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Details

Case: [2023] NZCA 288
Decision Date: 12 July 2023 at 10:30 am

CaseChat Overview and Summary

In this case, the trustees of the Eliza Trust (the appellants) sought to appeal against a judgment of the High Court that found the Thames-Coromandel District Council (the respondent) liable for certain defects in the construction of the appellants' property. The High Court had found that the Council was only liable for defects in the tiling of the balconies and that the trustees were contributorily negligent. The appellants argued that the Council's liability was considerably greater than that found by the Judge and that the Judge had erred in finding that they were contributorily negligent. The Court of Appeal dismissed the appeal, finding that the Judge's findings were supported by the evidence and that the reduction in damages for contributory negligence was within range. The appellants were ordered to pay the respondent's costs for the appeal.

Orders