Roebuck v Liddle - [2022] NZHC 2016

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 Trust

Second Plaintiffs

AND

ROBERT JAMES LIDDLE

First Defendant

AMANDA ELIZABETH LIDDLE
Second Defendant

Continued…

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 Defendant

REDHEAD ARCHITECTURE LIMITED
Fifth Defendant

FORMWORKS HB LIMITED
Sixth Defendant

HARDCORE CONCRETE LIMITED
Seventh Defendant

M J FOGARTY PAINTING & DECORATING LIMITED

Eighth Defendant

WYNANDS MASONRY LIMITED
Ninth Defendant

REALDEAL ROOFING LIMITED
Tenth Defendant

HAWKES 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…

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.

Continue reading Roebuck v Liddle

Details

AGLC: Roebuck v Liddle [2022] NZHC 2016
Case: [2022] NZHC 2016
Decision Date: 15 August 2022

CaseChat Overview and Summary

The plaintiffs in Roebuck v Liddle, Jason and Victoria Roebuck and the trustees of the Tahi Trust, sought judgment by way of formal proof against M J Fogarty Painting & Decorating Limited, the eighth defendant, for breach of professional obligations in external painting work carried out on their property. The eighth defendant, a painting contractor, was one of several subcontractors engaged by Liddle Builders and Construction Limited, now in liquidation, to perform work on the property under a Residential Building Contract. The plaintiffs alleged that the eighth defendant breached its duty of care by using the wrong type of stain, resulting in colour variances on the exterior wall cladding. The eighth defendant did not respond to the proceedings, and the plaintiffs applied for judgment by way of formal proof.

The court had to determine whether the plaintiffs' claims were made out and if the costs sought were foreseeable losses resulting from the breach. The plaintiffs needed to provide affidavit evidence establishing each cause of action relied on and sufficient information to enable the court to calculate and fix the damages.

The court found that the plaintiffs had established their claims on the balance of probabilities, as required under the High Court Rules. The evidence showed that the eighth defendant had used a different brand of stain and different application methods, resulting in significant colour variations contrary to the specifications. The plaintiffs sought $41,049.25 (inclusive of GST) for the cost of repainting the exterior of the building. The court was satisfied that the costs sought were plainly foreseeable losses arising from the breach of the eighth defendant's obligation to exercise reasonable care and skill.

The court granted judgment for the plaintiffs against the eighth defendant in the sum of $41,049.25 (inclusive of GST) and awarded costs in favour of the plaintiffs on a 2B basis.

Orders