Manhire v Tuatara Structures Limited

[2025] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-501

[2025] NZHC 2500

UNDER

the Building Act 2004

IN THE MATTER

of a claim for defective building work

BETWEEN

DEBORAH LEE MANHIRE and ALAN MANHIRE

Plaintiff

AND

TUATARA STRUCTURES LIMITED

Defendant

Hearing:

(On the papers)

Appearances:

D L Manhire in person Plaintiffs

J I Taylor and S M U Lee for Defendant

Judgment:

29 August 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

MANHIRE v TUATARA STRUCTURES LIMITED [2025] NZHC 2500 [29 August 2025 ]

[1]    In this proceeding Deborah Manhire and Alan Manhire (the Manhires) sue Tuatara Structures Limited (Tuatara) alleging Tuatara breached a building contract between the parties made in August 2016. The Manhires say the alleged breaches have left them with a building that is out of plum and contains a number of construction defects as set out in their amended statement of claim.

[2] The Manhires rely on the terms of the building contract, warranties implied by the Building Act 2004 (the Act), and the terms of the standard New Zealand Housing Alterations and Small Buildings Contract (NZS3902:2004) pleaded as being incorporated by reference into the building contract.

[3]    There are separate causes of action in negligence and under the Consumer Guarantees Act 1993 that rely on the same allegations of poor workmanship and  of  a failure to follow the plans and specifications.

[4]    In that sense, the proceeding is a conventional one. It is also a proceeding that will essentially turn on expert evidence both as to whether the alleged breaches exist and if so what damages should be awarded.

[5]Much of the background set out in the amended statement of claim is admitted.

[6]    Essentially, the hearing will concern whether there are defects in the building work and/or whether there was a failure to follow the plans and specifications and, if so, the required remediation and its cost.

[7]    A five-day hearing of this proceeding scheduled to begin 18 August 2025, was vacated by Associate Judge Paulsen in a minute of 9 June 2025. Associate Judge Paulsen recorded that the Manhires’ counsel had recently been granted leave to withdraw and recorded the Manhires wanted to engage new counsel, but as at 9 June, had not done so. The Court file does not suggest new solicitors have been instructed.

[8]    Counsel for Tuatara has made an application to strike out as inadmissible parts of Ms Manhire’s brief of evidence and two paragraphs from the brief of evidence of a Mr Stephenson.

[9] The Manhires have filed a notice of opposition dated 4 August 2025 to that application, however it does not engage with the strike out application. The notice of opposition in fact seeks interlocutory orders. It proposes that there be an MBIE determination as to issues at the property and whether it complies with the Act, the Building Code and the building consents. That is not a matter on which I can rule in the absence of an application seeking such orders setting out the basis upon which they could be sought.

[10]   The Manhires also raise the issue of whether other parties, including the Local Authority, should be joined.

[11]   Accordingly, the Manhires’ notice of opposition does not address the admissibility issues raised by Tuatara, nor does the memorandum filed by Ms Manhire engage with the grounds relied on by Tuatara regarding why numerous paragraphs in her brief should be excluded. The Manhires’ memorandum covers the merits of the proceeding and addresses the concerns they have with the property. The memorandum does not assist me in determining the challenge to the evidence.

[12]   Ms Manhire’s affidavit of 4 August 2025 does refer to her evidence concerning her claim that staff members at Tuatara are members of the exclusive Brethren Church. That evidence is advanced apparently to found a submission the relevant staff members have an incentive to be dishonest in their evidence.

[13]   Ms Manhire’s affidavit goes on to make comments about the evidence relied on by Tuatara, but again does not deal with the objections to the paragraphs in her brief, save to the limited extent identified above.

[14]   This review of the papers filed by the Manhires means that the substance of the challenge to Ms Manhire’s brief is unchallenged.

[15]   Having reviewed the schedule of objections annexed to the application to strike out the plaintiff’s brief, I find each of the criticisms to be valid. Because of the extent of the challenged paragraphs, I do not intend to revisit and address each challenge.    I accept the grounds of challenge set out in the schedule. It is not possible to save

Ms Manhire’s brief by striking through particular paragraphs. The brief will need to be completely rewritten.

[16]   Ms Manhire must remember that she is a witness of fact. She is not, in her evidence, to provide commentary, submission or opinion. Nor is she to recite the contents of documents unless the contents of the documents are disputed and require some explanation.

[17]   As I commented on earlier, much of the background to the building work (the entering of the contract and the timing of when the work was done) is not in dispute. Such uncontested background can be covered in opening and does not need to be in evidence. The real issue is whether the work was done in a proper manner.  That is   a matter for the experts to comment on, not the Manhires.

[18]   The Manhires intend to instruct new counsel. New counsel will be able to assist Ms Manhire with her replacement brief. I do not timetable the preparation of the replacement brief, as at this stage I do not know whether the Manhires have been successful in obtaining a new lawyer. That issue can be revisited at the telephone conference before me on 3 September 2025.

[19]That leaves the challenge to two paragraphs of Mr Stephenson’s brief.

[20]   In para [40] of Mr Stephenson’s brief, he compares the property, the subject of this proceeding, to the Ettamogah Pub. Apparently, this is a “comically and cartoonishly out of plum building in Australia”.

[21]   Tuatara’s counsel submits that the sloping walls and timber construction are in fact an architectural feature of the Australian property.

[22]   I do not intend to strike out this paragraph. The trial judge will make of it what they will. Arguably, there might be an element of exaggeration in the evidence, but is intended to illustrate that at its most basic, Mr Stephenson considers the property to be significantly out of plum.

[23]   However, in respect of Mr Stephenson’s para [51](a), where he purports to give a view as to whether portal columns were likely to be subject to additional loads and/or stresses, on his own acknowledgement, he is not in a position to provide that opinion evidence and that paragraph is to be struck through. Mr Stephenson is a building expert not an engineer. The challenged paragraph is an expression of opinion in general terms. The giver of such evidence needs to be in a position to engage with other parties’ witnesses as to why they hold their opinion in the course of expert conferral. The discussion of loads and stresses requires an engineering analysis, not one based on impression.

Costs

[24]   Tuatara  has  been  successful  in  its   challenge   to   the   admissibility  of Ms Manhire’s brief. As already noted, Ms Manhire did not engage with the substance of the challenge to her evidence. Tuatara’s counsel wrote to counsel then instructed for the Manhires (who, as noted, has since been granted leave to withdraw) raising issues with Ms Manhire’s brief. There was no reply to that challenge.

[25]   Tuatara is entitled to costs on a 2B basis plus disbursements as fixed in respect of its application.

Associate Judge Lester

Solicitors:

Wynn Williams, Christchurch (for Defendant)

Copy to:
Mr and Mrs Manhire (self-represented Plaintiffs)