Palmer v Hewitt Building Ltd - [2021] NZHC 1460

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2019-435-005

[2021] NZHC 1460

BETWEEN
BARBARA LYNN PALMER

Plaintiff

AND

HEWITT BUILDING LIMITED

First Defendant

AND

MARK WILSON HEWITT

Second Defendant

Hearing: 22 – 24 March 2021 and 8 June 2021

Appearances:

P W Michalik for the Plaintiff

R P Conner and S J Martin for the Defendants

Judgment:

18 June 2021

JUDGMENT OF COOKE J

Table of Contents

What happened?[5]

Second cause of action: Breach of statutory duties[22]

Statutory warranties[25]

Breach of statutory duty[32]

Third cause of action: negligence[39]

Evidential issues[41]

Recoverable loss[42]

Expert evidence[44]

Measurement of damages[48]

Evidence on claim against first defendant[51]

The builder’s duty of care[53]

Trevor Ivory — assumption of responsibility[57]

Obligation to comply with the Consent not the Code — the Building Act 2004[66]

Individual elements of disallowed claims[81]

Water tank[83]

PALMER v HEWITT BUILDING LIMITED [2021] NZHC 1460 [18 June 2021]

South elevation cladding — Coloursteel not Abodo[86]

Omitted roof[91]

Roof eaves and fascia boards[96]

Masport fireplace[99]

Regency gas fireplace[104]

Garage size[108]

Concrete steps and base for gas cylinders[110]

HySpan beams/girder truss[113]

Unstable walls[115]

Ceiling batts[120]

Other omissions[125]

Provisional sums and diminution of value[128]

Conclusion on claims against first defendant[133]

Individual elements where claims potentially upheld[137]

Abodo cladding[138]

Roof[153]

Flashings to Coloursteel cladding[161]

Roof support posts[167]

Summary[172]

Conclusion[173]

[1] In June 2016 Ms Barbara Palmer signed a fixed price building contract with Hewitt Building Ltd to extend and renovate a house that she had purchased on the outskirts of Masterton. She remained living onsite whilst the building works were undertaken. The building work was largely completed by December 2016 but a series of problems and disputes had emerged and continued to emerge through 2017 and 2018. The Masterton District Council issued a Notice to Fix deficiencies with the building on 19 October 2018, and at the date of trial no Code of Compliance Certificate has yet been issued.

[2] Ms Palmer commenced these proceedings in 2019. They involve claims in contract against the contracted building company, Hewitt Building Ltd as first defendant, and additional personal claims against Mr Hewitt as the second defendant. Mr Hewitt is the owner and sole director of the first defendant. Shortly before trial the first defendant advised it was not defending the claims brought against it, such that those claims would proceed at the trial by way of formal proof. At trial Mr Hewitt confirmed it would not have the assets to meet the judgment sought against it. The trial has focused, therefore, on Mr Hewitt’s personal liability to Ms Palmer.

[3]Ms Palmer pursues two causes of actions against Mr Hewitt, namely:

(a)A claim for breach of statutory warranties arising under the Building Act 2004, or for breach of statutory duty (the second cause of action); and

(b)A claim in negligence (the third cause of action).

[4] As against the first defendant the formal proof relates to its claims under the first and second causes of action.

What happened?

[5] I…

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: [2021] NZHC 1460
Decision Date: 18 June 2021

CaseChat Overview and Summary

Barbara Palmer commenced proceedings against Hewitt Building Limited and Mark Wilson Hewitt, seeking damages in relation to a residential building project. The building works were largely completed by December 2016 but a series of problems and disputes had emerged and continued to emerge through 2017 and 2018. The Masterton District Council issued a Notice to Fix deficiencies with the building on 19 October 2018, and at the date of trial no Code of Compliance Certificate had yet been issued. Palmer pursued two causes of actions against Mark Wilson Hewitt, namely:(a)A claim for breach of statutory warranties arising under the Building Act 2004, or for breach of statutory duty; and(b)A claim in negligence.The court found that the second cause of action was not established. The court found that the third cause of action was established in relation to the Abodo cladding, the roof, the flashings to Coloursteel cladding, and the roof support posts. The court awarded damages to Palmer against Mark Wilson Hewitt in the amount of $67,575, and against Hewitt Building Limited in the amount of $392,400.

Orders