Stott v Uplifting Homes Limited - [2023] NZHC 1514

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-101

[2023] NZHC 1514

BETWEEN
GAVIN JOHN STOTT and MEGAN JANAE SAVAGEAU

Plaintiffs

AND

UPLIFTING HOMES LIMITED

Defendant

Hearing: 27-28 February 2023, 1-2 March and 6-7 March 2023

Appearances:

G R Grant and B M Foster for plaintiffs K M Quinn and R Pope for defendant

Date of judgment:

19 June 2023

Reissued:

28 June 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 19 June 2023 at 12.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
K M Quinn, Barrister, Auckland Grant & Co, Auckland
Beattie Rickman Legal, Hamilton

STOTT v UPLIFTING HOMES LTD [2023] NZHC 1514 [19 June 2023]

Contents

Background [7]

Statutory context

—Building Act 2004  [46]
—Consumer Guarantees Act 1993  [50]
—Contract and Commercial Law Act 2017  [53]

Discussion

—did Uplifting perform the contract?  [54]
—were the Savageau/Stotts entitled to cancel the contract?  [65]
—compensation on cancellation  [69]
—contractual damages  [74]

—conclusion on relief [85]

Result [90]

Costs [91]

[1] In July 2019, the plaintiffs, Megan Savageau and Gavin Stott (the Savageau/ Stotts), acquired from the Hamilton-based defendant (Uplifting) an early-20th century wooden house for relocation from Auckland’s Remuera to Bay of Plenty’s Katikati at a price of $158,000.

[2] The house was transported in October 2019, but its resiting became complicated by its move from Remuera’s lower to Katikati’s higher wind zone. The Western Bay of Plenty District Council’s (the Council) building consent requirements accordingly imposed particular requirements for the relocated house’s foundations, internal bracing and roof structure. Pending issue of building consent, the relocated house was placed on temporary foundations at the Katikati site. After building consent was obtained, Uplifting re-established the house on permanent foundations in July 2020 and relined and reroofed the house, albeit incompletely.

[3] The Savageau/Stotts claim Uplifting’s relocation and building work was so substandard the house required “extensive remedial work in order to render it fit for occupation” and compliant with building standards, and cancelled their contract with Uplifting. By this proceeding, they sought to recover some $800,000 in contended losses, constituted by some $240,000 in their “wasted costs” to acquire and relocate the house (and identify its defects), some $520,000 as the estimated cost of remedying the defects and some $30,000 in lost rental income from other accommodation on the new site (in which the Savageau/Stott family continued to reside, pending their

occupation of the house). Unquantified general damages also were claimed for emotional loss.

[4] However, the Savageau/Stotts subsequently relocated to Marlborough’s Nelson and sold their Katikati property. Its purchaser required as a condition of sale the house’s removal. After unsuccessful attempts to re-sell the house for removal or return it to Uplifting, the house was demolished. In the event, for trial, the Savageau/Stotts seek now to recover some $330,000 in “wasted costs” (less insurance receipts) and lost rental income, plus $35,000 in general damages. The claim alleges breach of…

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: [2023] NZHC 1514
Decision Date: 19 June 2023

CaseChat Overview and Summary

The case of Stott v Uplifting Homes Limited involves a dispute between the plaintiffs, Megan Savageau and Gavin Stott, and the defendant, Uplifting Homes Limited, regarding the relocation of a wooden house from Remuera to Katikati. The plaintiffs claim that Uplifting Homes failed to properly and competently complete the relocation and building work, resulting in significant defects and the need for extensive remedial work. They seek to recover their "wasted costs" and lost rental income, as well as general damages for emotional loss. Uplifting Homes denies liability, asserting that it was not required to make the relocated house "fit for occupation" but only to re-erect the house as structurally sound on permanent foundations in Katikati. It also raises affirmative defences of contributory negligence and failure to mitigate loss.

The High Court of New Zealand, Tauranga Registry, presided over by Jagose J, found in favour of the plaintiffs and ordered Uplifting Homes to pay $94,911.53 to the plaintiffs, together with interest from the date of quantification by this judgment and ending on the date the judgment debt (including all interest) is paid in full. The court found that Uplifting Homes failed to carry out its building work properly and competently, in accordance with the building consent, and within a reasonable time. These breaches of warranty implied by the Building Act into the contract with the plaintiffs entitled them to cancel the contract, as they did. The court assessed the plaintiffs' actual loss by reason of Uplifting Homes' breaches and ordered Uplifting Homes to pay $94,911.53 to the plaintiffs, together with interest from the date of quantification by this judgment and ending on the date the judgment debt (including all interest) is paid in full. Costs are reserved for determination on short memoranda to be filed and served by the plaintiffs within ten working days of the date of this judgment.

Orders