Roebuck v Liddle
[2022] NZHC 2016
•15 August 2022
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2021-441-74
[2022] NZHC 2016
UNDER the Building Act 2004, the Consumer Guarantees Act 1993 and the general law IN THE MATTER OF
claims arising under a Residential Building Contract
BETWEEN
JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK
First Plaintiffs
JASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK and PETER
JOHN ROEBUCK as trustees of the Tahi TrustSecond Plaintiffs
AND
ROBERT JAMES LIDDLE
First Defendant
AMANDA ELIZABETH LIDDLE
Second DefendantContinued…
Hearing (by VMR): 15 August 2022 Counsel:
J L Bates for the Plaintiffs
No appearance for the Eighth Defendant
Judgment:
15 August 2022
JUDGMENT OF GWYN J
(Formal Proof)
Solicitors:
Brown & Bates, Napier
Copy to:
The Eighth Defendant
ROEBUCK v LIDDLE [2022] NZHC 2016 [15 August 2022]
AND HASTINGS DISTRICT COUNCIL
Third Defendant
SIGMA CONSULTING ENGINEERS LIMITED
Fourth DefendantREDHEAD ARCHITECTURE LIMITED
Fifth DefendantFORMWORKS HB LIMITED
Sixth DefendantHARDCORE CONCRETE LIMITED
Seventh DefendantM J FOGARTY PAINTING & DECORATING LIMITED
Eighth Defendant
WYNANDS MASONRY LIMITED
Ninth DefendantREALDEAL ROOFING LIMITED
Tenth DefendantHAWKES BAY MEMBRANE SOLUTIONS LIMITED
Eleventh Defendant
MITCHELL LIETZ
Twelfth Defendant
Introduction
[1] Jason and Victoria Roebuck, the first plaintiffs, and the trustees of the Tahi Trust, the second plaintiffs, seek judgment by way of formal proof in respect of their claims against M J Fogarty Painting & Decorating Limited, the eighth defendant.
Background
[2] The first plaintiffs, Mr and Ms Roebuck, together with the third trustee of the Tahi Trust, are owners of a property at Havelock North (the property). Under a building agreement dated 13 September 2019 (Building Agreement), the plaintiffs entered into a contract with Liddle Builders and Construction Limited (Liddle Builders). The plaintiffs’ claim against the defendants arises out of residential building work undertaken on the property pursuant to the Building Agreement.
[3] Liddle Builders is now in liquidation. The plaintiffs’ claim is that the other defendants, who were engaged for various building or painting work, are liable to the plaintiffs in negligence. The third defendant, the Hastings District Council, is also sued in negligence with the plaintiffs alleging breaches of duties of care to the plaintiffs in respect to the Council’s inspections of the building work.
[4] The plaintiffs’ claim against the eighth defendant relates to external painting work on the building, carried out by the eighth defendant.
Law – formal proof
[5] Part 15, Subpart 2 of the High Court Rules (Rules) governs the process for obtaining judgment by default.
Service
[6] Rule 15.4 of the Rules requires the filing of an affidavit of service of the statement of claim and notice of proceeding before judgment by default can be sealed.
[7] The plaintiffs’ statement of claim is dated 24 September 2021 and was filed in the High Court in Napier on that date. Service of the statement of claim, notice of
proceeding, initial disclosure (under r 8.4) and a USB stick containing initial disclosure documents, was served on the eighth defendant on 4 October 2021. An affidavit of service has been filed. I am satisfied that the eighth defendant was served with the above documents.
[8]No steps have been taken by the eighth defendant.
Formal proof hearings
[9] The provisions of r 15.9 of the High Court Rules 2016 which govern formal proof hearings apply. That rule provides:
(1)This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.
(2)The proceeding must be listed for formal proof and no notice is required to be given to the defendant.
(3)After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.
(4)The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.
(5)If the Judge before or at the formal proof hearing considers that any deponent of an affidavit filed under subclause (4) should attend to give additional evidence, the Judge may direct accordingly and adjourn the hearing for that purpose.
Applicable principles
[10]The relevant principles are set out in Ferreira v Stockinger:1
[33] Now r 15.9 of the High Court Rules applies to a formal proof hearing when no statement of defence has been filed and the plaintiff seeks judgment by default for other than a liquidated demand, which is the case here. This rule provides a mandatory procedure: “it does not involve the immediate entry of judgment by default”.
1 Ferreira v Stockinger [2015] NZHC 2916, recently endorsed in Wulff v De Marco & Anor [2021] NZHC 3110.
[34] Under r 15.9(4) a plaintiff must establish to a Judge's satisfaction each cause of action relied on and, if damages are sought, provide sufficient information to enable the Judge to calculate and fix the damages. The affidavit evidence required by r 15.9(4) should not include evidence that the Court could not receive if objection was raised by the defendant.
[35] When it comes to the extent to which the plaintiff's evidence is required to satisfy a Judge under r 15.5(4) the presence of r 15.5(5) gives some indication of what may be required. Rule 15.5(5) permits a Judge to direct a deponent of an affidavit to attend the Court to give additional evidence. The fact the rules make provision for a Judge hearing a formal proof to hear from witnesses whose evidence has obviously not been challenged by an opposing party suggests to me that the level at which a Judge is required to satisfy herself regarding the plaintiff's evidence is much the same as it would be if the proceeding had gone to trial. This view of r 15.9 is consistent with the observation of Kós J in Neumayer that the r 15.9 procedure may not provide any advantage over allowing matters to run to trial. The view that I take of r 15.9 is also consistent with the very helpful discussion of the earlier version of r 15.9 in Chen v Zhong, where Wylie J makes it clear that in a claim for unliquidated damages where no statement of defence has been filed, it does not necessarily follow that allegations of fact made in the statement of claim are deemed to be admitted.
[36] On the other hand in a formal proof hearing, the plaintiff is only required to prove a cause of action so far as the burden of proof lies on the plaintiff. The plaintiff is not required to engage with any matters of affirmative defences, set-off or counter-claim.
(Footnotes omitted)
Plaintiffs’ claim against eighth defendant; evidence
[11]The plaintiffs’ claim against the eighth defendant is that:
(a)It owed the plaintiffs a duty of care to perform its professional obligations as painting contractor with reasonable care and skill in accordance with the Industry Standards and/or the Plans and Specifications and/or Painting Manufacturer directions.
(b)In discharging its work, the eighth defendant breached its duty of care in that colour variances in exterior wall cladding staining occurred.
(c)As a result of the eighth defendant’s breach of duty, the plaintiffs have suffered loss and damage in that the whole of the exterior of the building will need to be repainted.
[12] The Painting Specifications contained in the Building Agreement required, amongst other things:
6700 PAINTING
1.GENERAL
Refer to the Drawings for specific product, material, accessories and finish selections.
…
2.PRODUCTS
2.1PAINT
As selected and to the paint manufacturer’s standards for exterior and/or interior primers, undercoats, sealers, stains, clear coatings, solvent-borne and water-borne paints.
…
3.EXECUTION
…
3.8PAINT APPLICATION
Apply by paint brush and/or roller to suit the location of the coating and to the paint manufacturer’s requirements. Do not spray on site without express permission.
3.9MANUFACTURER’S MANUALS
Refer to the paint manufacturer’s manuals and follow their preparation, sequence and application requirements applying to each system. Ensure all paint coats in any system are supplied by the same manufacturer.
…
3.11 FINISHED PAINT SURFACES
Finished paint surfaces to show uniformity of gloss and colour, with the correct thickness for each coat, and freedom from painting defects. Ensure finished work is clean and free of any disfigurement.
…
[13] The plaintiffs had required Robert Liddle (the first defendant) and the eighth defendant to use Dryden WoodOil, in the colour “Slate”, on the exterior cladding.
[14] Mr Roebuck, one of the plaintiffs, gives evidence that the plaintiffs discerned discolouration in the painting stain applied to the exterior cladding of the building. In subsequent discussions with Mr Liddle and Mr Fogarty (the eighth defendant’s sole director and a shareholder), they acknowledged they had departed from the
specifications by using a Resene product in certain areas, as well as using the correct Dryden product.
[15] Mr Roebuck says that the exterior cladding is not of uniform colour, as a result of the mixed use of both the Dryden product and the Resene product, which it appears the eighth defendant tried to colour match with the original Dryden product. This has resulted in what Mr Roebuck describes as a “blotchy sporadic colouring” which was unacceptable to the plaintiffs. Mr Roebuck says Mr Fogarty accepted that there was a substandard finish and colour. Both Mr Liddle and Mr Fogarty advised the plaintiffs to wait a few months on the basis that the colour stain would fade and eventually match, but that did not occur.
[16] In addition, Mr Liddle and Mr Fogarty advised Mr Roebuck that if the timber was sanded that would dull the stain and the correct stain could then be placed over the top. Mr Roebuck says that would irreversibly change the aesthetic nature of the band sawn facings of the timber. A third proposal was that the plaintiffs stain over the top several times, to achieve a uniform colour.
[17] Mr Roebuck also gives evidence of his discussions with a representative from Dryden who advised that applying Resene stain over the original Dryden WoodOil on some sections of the exterior will have compromised the performance of the Dryden product. His recommendation was to remove all stain, clean and recoat the cladding.
[18] Mr Roebuck’s evidence shows that the eighth defendant was removed from the Companies Officer register as at 30 May 2022. Mr Bates, counsel for the plaintiffs, advised at the formal proof hearing that the company is not in liquidation, which would have been a bar to proceeding by way of formal proof.
[19] The second affidavit in support of the application for formal proof is from Scott Dunnett of QSpec. Mr Dunnett gives evidence as an expert building contractor and building surveyor. QSpec was engaged by the trustees of the Tahi Trust to independently and impartially assess the state of building work at the property that was being undertaken by Liddle Builders and its subcontractors.
[20] Mr Dunnett says he ascertained on inspection that a different brand of stain (a Resene product) than that specified by the plaintiffs (Dryden WoodOil) had been used; different application methods had been employed through a combination of spraying (by machine at suppliers) and brush and roll-on applications (on site). Mr Dunnett says:
The result was that there was significant colour variations contrary to the specification requiring uniformity of colour which adversely affected the aesthetics of the exterior wall finish.
As a result of the colour variances the external painting work will have to be redone in its entirety and those sections where the incorrect stain has been used need to be replaced as warranties will not be provided from the selected stain manufacturer were different stains are mixed.
[21] Elwin Sharp gave expert evidence as a quantity surveyor. Mr Sharp has provided two estimates for the house – a Rebuild Estimate and a Repair Estimate. The estimate in respect of the external painting costs is the same for both – $35,695 (exclusive of GST), $41,049.25 (inclusive of GST). Mr Sharp says those costs will be the same regardless of whether the house is repaired or rebuilt.
[22] Accordingly, the plaintiffs seek judgment against the eighth defendant in the sum of $41,049.25. Mr Bates confirmed at the hearing of the application that the sum sought includes both materials and labour.
Assessment
[23] Building contractors, including subcontracted tradespeople, owe a tortious duty of care to the first and subsequent owners of residential buildings.2 As Duffy J said in Body Corporate 185960 v North Shore City Council:3
The principle to be derived from Bowen v Paramount Builders will apply to anyone having a task in the construction process (either as a contractor or subcontractor) where the law expects a certain standard of care from those who carry out such tasks.
2 Bowen v Paramount Builders (Hamilton) Limited [1977] 1 NZLR 394 (CA).
3 Body Corporate 185960 v North Shore City Council HC Auckland CIV-2006-004-3535, 22 December 2008.
[24] Similarly, in Body Corporate 189855 & Ors v North Shore City Council & Ors (Byron Avenue), Venning J stated, in respect of a plasterer subcontractor:4
For the sake of completeness I confirm that I accept a tradesman such as a plasterer working onsite owes a duty of care to the owner and to the subsequent owners, just as a builder does.
[25] I am satisfied on the evidence before me that the claims against the eighth defendant are made out. As explained in Ferreira,5 I am not required to engage with any matters the eighth defendant might have raised by way of affirmative defence, for example as to whether the external paint work could have been rectified (in whole or in part) as an alternative to carrying out the work afresh.
[26] The costs sought are plainly foreseeable losses that arise from the breach of the eighth defendant’s obligation to exercise reasonable care and skill.
Result
[27]I grant judgment for the sum of $41,049.25 (inclusive of GST).
Costs
[28] I grant costs in favour of the plaintiffs against the eighth defendant on a 2B basis.
Gwyn J
4 Body Corporate 189855 & Ors v North Shore City Council & Ors (Byron Avenue) HC Auckland CIV-2005-404-5561, 25 July 2008 at [296].
5 Ferreira v Stockinger above n 1, at [36].
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