Scandle v Far North District Council - [2012] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND

CA619/2010
[2012] NZCA 52

BETWEEN MICHAEL JOHN SCANDLE
Appellant

AND FAR NORTH DISTRICT COUNCIL
Respondent

Hearing: 12 October 2011

Court: Chambers, Ronald Young and Andrews JJ

Counsel: R J Katz QC and J D Turner for Appellant
S A Thodey and F P Divich for Respondent

Judgment: 1 March 2012 at 2 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant must pay the respondent costs for a complex appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Chambers J)
Table of contents
Para No

Defective construction of a holiday home in Kerikeri [1]

Issues on the appeal [12]

Was the Council’s failure to require a geotechnical report prior to the

issue of the first building consent causative of Mr Scandle’s loss? [22]

Was the Council negligent in permitting building in January 2001

without requiring the “overburden” to be removed? [35]

Was the Council negligent in not following through on its notice

to rectify? [45]

Was the Council negligent in not checking Nationwide’s reports? [48]

Result [56]

Defective construction of a holiday home in Kerikeri

Corina and Michael Mullane owned a piece of land on Doves Bay Road, Kerikeri. They wanted to build a holiday home on it. Mr Mullane intended to build it himself. The Mullanes had plans drawn for a two-storey home.
In September 2000 Mr Mullane applied to the Far North District Council, the respondent, for a building consent. In due course the Council granted it. Mr Mullane started work.
On 10 November 2000, Mark Christiansen, a Council building inspector, inspected the building work. He found much that was wrong with it. He issued a notice to rectify under s 42 of the Building Act 1991. The effect of such a notice was to require the builder to stop all work until the matters specified in the notice were fixed up.
Mr Mullane, on receiving the notice, engaged the services of a firm of consulting engineers, PK Engineering Limited. PK issued a report detailing the problems. They recommended a new design for the building. Mr Mullane also got Total Design Limited involved. Total Design was a company providing building and landscape design services. Between them, PK and Total Design came up with new plans for the house. The new house was to be only one storey. PK and Total Design submitted the new plans to the Council on 12 January 2001. Total Design also advised the Council that Mr Mullane had engaged a private certifier to inspect and certify the rest of the building work. Under the 1991 Act, the inspection and certification of building work for compliance with the building code[1] and the 1991 Act could be done by either a council building inspector or a private certifier. Under the Act, each was authorised to issue a code compliance certificate. The purpose of such a certificate was to provide assurance to those using the building and future purchasers…

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: [2012] NZCA 52
Decision Date: 1 March 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Michael Scandle against the Far North District Council. The appeal stemmed from a defective construction of a holiday home in Kerikeri, which resulted in significant damages that Mr. Scandle sought to recover. The primary legal issues were whether the Council's failure to require a geotechnical report before issuing the first building consent, its decision to permit building without requiring the removal of "overburden," its failure to enforce its notice to rectify, and its inaction regarding Nationwide's reports constituted negligence. The Court found that the Council's actions, while possibly negligent, were not causative of Mr. Scandle's loss. The Court upheld the trial judge's application of the causation test, noting that the Council's failure to require a geotechnical report was not a substantial and material cause of the loss. Furthermore, the Court found that the Council was not negligent in issuing the building consent in January 2001 or in not enforcing its notice to rectify and checking Nationwide's reports. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs on a band A basis and usual disbursements.

Orders