Minister of Education v Coastline Builders Limited

[2015] NZHC 419

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-314 [2015] NZHC 419

BETWEEN

THE MINISTER OF EDUCATION

First Plaintiff

AND

THE SECRETARY FOR EDUCATION Second Plaintiff

AND

THE MATAKANA SCHOOL BOARD OF TRUSTEES

Third Plaintiff

AND

COASTLINE BUILDERS LIMITED Defendant

Hearing:	9 March 2015 (Formal Proof)
Appearances:	EMH Escott for Plaintiffs No appearance for Defendant
Judgment:	10 March 2015

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 10 March 2015 at 3:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

MINISTER OF EDUCATION v COASTLINE BUILDERS LTD [2015] NZHC 419 [10 March 2015]

[1]      Between them, the  plaintiffs own and  manage Classroom 3 at Matakana School.    In  January 2003,  the  third  plaintiff  contracted  with  Coastline  Builders Limited  (“Coastline”)  for  construction  of  the  classroom.    The  construction  was carried out during 2003 and in November the School took over occupation.

[2]      As part of a nationwide audit of school buildings, the Ministry of Education engaged experts to inspect the classroom for weathertightness.   The experts’ inspections revealed construction defects which have allowed water ingress, causing damage to the classroom. As a result, the classroom requires significant repairs.

[3]      The  proceeding  was  commenced  on  23  January  2013  but  an  amended statement of claim was filed on 7 November 2013, following receipt of a comprehensive destructive testing report from the plaintiffs’ expert advisers.   The defendant was served at its registered office on 18 November 2013.

[4]      The plaintiffs sue Coastline in tort, alleging they were owed a duty of care by which Coastline was obliged in carrying out the construction to exercise reasonable care and skill in the performance of its obligations; to ensure the classroom complied with relevant standards, would be weathertight and fit for its intended purpose; and ensure  that  sub-contractors  performed  the  work  pursuant  to  the  contract  in accordance with relevant requirements of the building consent, the Building Act

1991,  the  Building  Code,  relevant  product  specifications,  any  other  applicable bylaws and statutes, and good trade practice.

[5]      The  statement  of  claim  contained  detailed  allegations  of the  defects  and damage to the building, with a summary of the nature of remedial work required to repair the building.  Damages in such sum as would be necessary to cover the cost of repairs  were  sought,  together  with  interest  from  the  date  of  the  issuing  of proceedings to the date of judgment.

[6]      Initially the plaintiffs did not require Coastline to file a statement of defence, preferring instead to endeavour to negotiate a settlement of the claim.  Settlement did not  occur  and  the  plaintiffs  subsequently  notified  Coastline  that  it  would  be necessary for it to file a statement of defence if it wished to oppose the claim.

[7]      Coastline has taken no step in the proceeding and the claim was heard by way of formal proof.

[8]      I have read the comprehensive affidavits filed in support of the claim and

Ms Escott’s thorough and helpful submissions.

[9]      I am satisfied:

(a)       that Coastline owed the plaintiffs a duty of care as alleged;

(b)that  the  duty of  care  was  breached  in  the  manner  alleged  in  the statement of claim and proved by way of the various reports and affidavits filed by and on behalf of the plaintiffs; and

(c)      that the cost of the remedial work necessary to repair the damage caused by the defendant’s negligence will amount to an estimated sum of $558,603.66 inclusive of GST and fees.

[10]     It appears from the evidence that the plaintiffs have not yet incurred the cost of repairs.   On that basis I am not inclined, at this stage, to award interest on the judgment  sum.     The  plaintiffs  shall  have  leave,  however,  to  make  further submissions in support of the claim for interest if they consider it should be pursued, and that part of the claim is reserved accordingly.

[11]     The plaintiffs shall have judgment against the defendant for damages in the sum of $558,603.66 together with costs, calculated on a Category 2B basis, in the sum of $15,721.00 together with disbursements totalling $1,379.20.

……………………………….

Toogood J