Te Whau Vineyard Ltd v Auckland City Council HC Auckland CIV 2004-404-005306

[2008] NZHC 2489

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-005306

BETWEEN  TE WHAU VINEYARD LTD Plaintiff

ANDAUCKLAND CITY COUNCIL First Defendant

ANDANDREW SCOTT COTTON LTD Second Defendant

ANDLIVINGSTONE BROS LTD Third Defendant

Hearing:         6 June 2007

Appearances: T Rainey and K Harkess for Plaintiff

S Price and W Blennerhassett for Third Defendant

Judgment:      8 August 2008    at 5:00pm

JUDGMENT OF ASSOCIATE JUDGE D H ABBOTT

This judgment was delivered by me on 8 August 2008 at 5:00pm pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Grimshaw & Co, PO Box 6646, Auckland 1141 for plaintiff

DLA Phillips Fox, PO Box 160, Auckland 1140 for second defendant

TE WHAU VINEYARD LTD V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2004-404-00530 8

August 2008

Introduction

[1]      The third defendant, Livingstone Bros Ltd (“Livingstone”), has applied to strike out the claims brought against it by the plaintiff, Te Whau Vineyard Ltd (“Te Whau”).

[2]      Te Whau entered into a contract with Livingstone in April 1998, for the construction of a building for a commercial winery.  It included a restaurant and a residential apartment.  The work was certified as practically complete a year later, but Livingstone continued to do remedial work until December 2000.   Te Whau alleges that the building is defective.  It issued this proceeding in September 2004, seeking to recover the cost of remedying the alleged defects.  Initially it claimed that Livingstone was negligent.  In May 2006, it added a claim that Livingstone breached the construction contract, guarantees given under it, and a later “completion agreement”

[3]      Livingstone applies to strike out parts of Te Whau’s claim for breach of contract (relating to the initial performance of the work) on the grounds that the claims are barred under the Limitation Act 1950.  It applies to strike out other parts of the claim in contract and the claim in negligence on the ground that as pleaded they do not disclose a reasonable cause of action.   In the alternative, Livingstone seeks an order that Te Whau file and serve a more explicit statement of claim pleading a proper basis for all of its claims.

[4]      Te Whau opposes the application.  It says that its cause of action for breach of contract is not time-barred as Livingstone continued to perform the contract until at least December 2000, and that its pleading discloses a reasonable cause of action both for breach of contract and for negligence.  It also says that sufficient particulars have been provided to enable Livingstone to understand the claims against it.

[5]      Te Whau is the owner of land situated in Te Whau Drive, Waiheke Island.  In

1997 it engaged the second defendant (the architect) to design premises for a winery on its land, and to act for it in the letting of a contract for the premises and administration of that contract.

[6]      On 21 April 1998, Te Whau entered into an agreement with Livingstone for the  construction  of  the  winery  building,  which  in  addition  to  the  winery  itself included a restaurant and a residential apartment.  It was a term of the contact that Livingstone provide guarantees of specific aspects of the work prior to commencement of the contract.  Guarantees were provided for tanking, roofing and aluminium joinery.  Construction work started in April 1998 and was substantially completed in April 1999.

[7]      The  architect  issued  a  practical  completion  certificate  on  12  May  1999, certifying that the building had achieved practical completion as at 30 April 1999.

[8]      The contract provided for a defect liability period of three months.  On three occasions during the defect liability period (which ran from 30 April 1999 to 31 July

1999) the architect issued defect lists to Livingstone.   These were, in effect, an update of a list first prepared prior to the commencement of the defects liability period.

[9]      Livingstone continued to do work on items identified in the defects list, and on  further  matters  identified  after  expiry  of  the  defects  liability  period,  until

13 December 2000.   The building continued to suffer from leaks (some of which were first identified in January 1999) notwithstanding efforts made to prevent them. There was a particular issue in relation to leaks in or around the aluminium joinery in the building, with both Livingstone and its joinery subcontractor endeavouring to identify and remedy the problem with the benefit of reports from the joinery manufacturer.

[10]    In August 2000 the parties met to review outstanding contractual issues including release of unpaid contract sums.   Later that month the architect issued a further payment certificate for approximately half of the outstanding contract sum, but recorded a continuing retention for exterior joinery.

[11]     Issues over remedial work and payment continued.  They related primarily to responsibility for leaks in relation to joinery (Livingstone taking the view that problems  were  a  consequence  of  design  defects).    On  12  September  2000  the architect wrote to Livingstone recording his understanding of an agreement reached that day between the parties as to steps to be taken to complete the remedial work. Livingstone replied by letter on 20 September 2000, essentially agreeing with the architect’s record, but making additional comment on some points.

[12]     The terms for completion agreed on 12 September 2000 dealt principally with the continuing issue over leaks in and around the exterior joinery.  The parties agreed to appoint an independent expert to determine responsibility.  Livingstone agreed to remedy  any  defects   and   subsequent   damage  which   were   found   to   be   the responsibility of Livingstone or its subcontractor.  The joinery retention was to be paid to Livingstone when the expert confirmed that that remedial work had been completed.   Livingstone agreed to guarantee the remedial work for a further two years (the joinery guarantee given at the commencement of the contract was for a period of two years from date of practical completion).

[13]   Livingstone advised on 13 December 2000 that all remedial work was completed.   Auckland City Council issued a final code compliance certificate in respect of the property on 14 December 2000.

[14]     Livingstone submitted a final account in January 2001.  Te Whau declined to pay it on the ground that Livingstone had still not completed its obligations under the contract  and,  in  particular,  the  building  was  still  not  weathertight  despite  the remedial work that had been undertaken.

[15]     A settlement agreement was negotiated after Livingstone gave notice that it intended to take a claim for outstanding payments under the contract to arbitration.

That agreement was cancelled after Te Whau notified Livingstone on 21 May 2001 of further leaks and stopped any further payments, and Livingstone said it would not undertake any further work.

[16]     The  architect  issued  a  final  payment  certificate  on  31  August  2001,  but matters otherwise remained unresolved.  On 28 September 2004, Te Whau filed this proceeding, alleging causes of action against Livingstone for negligence and breach of the Fair Trading Act.  The Fair Trading Act claim was withdrawn leaving just the claim in negligence until Te Whau filed a fifth amended claim on 2 May 2006 adding its present claim for breach of contract.

The opposing contentions and issues arising

[17]     Livingstone put forward its case on two principal points.  The first point was that three aspects of the claim for breach of contract are time-barred except in respect of any contractual obligations which exist after the date of practical completion.  The second point was that the claims for breach of contract do not disclose any ongoing obligation on Livingstone to perform work under the construction contract nor the basis for any claim under the  guarantees, and the  claim for negligence did not disclose either an accepted basis for a duty of care or specific circumstances which could give rise to a duty of care.  In the event that the Court does not see fit to strike out these claims, Livingstone seeks orders that the causes of action be re-pleaded: the breach of contract claim to separate out the claim for ongoing contractual obligations from the claims in respect of guarantees and to provide full particulars of those claims, and the negligence claim to set out the matters which are said to give rise to a duty of care.   Livingstone argues that the claim for ongoing obligations under the defects liability clause cannot be cured by amendment as the obligation can only apply to defects properly notified, and the notice was defective for failing to provide a time for payment.

[18]     Te Whau argues that Livingstone’s contractual obligations were all ongoing, and that this was accepted by Livingstone in continuing to undertake remedial work until 13 December 2000.  It submits that the case is not clear enough to determine when  breach  occurred  (to  start  the  limitation  period  running)  on  a  strike  out

application.   It contends that its pleading discloses all the requisite elements for the breach of contract claim (on the basis of continuing obligations and breach when Livingstone refused to return to rectify the remedial work (in May 2001).   It also says that it has pleaded circumstances which establish a basis for a duty of care for the negligence claim.

[19]     The issues which the Court must address are:

a)        Was there an ongoing contractual obligation to perform work so as to extend the accrual of the contract cause of action?

b)Does the claim for breach of contract as pleaded disclose a reasonable cause of action and, if not, can it be re-pleaded?

c)        Does the claim for negligence disclose a reasonable cause of action?

Legal principles

[20]     The Court’s jurisdiction to strike out is to be found in r 186 of the High Court Rules,  together  with  the  inherent  jurisdiction  of  the  Court  to  prevent  abuse  of process.  R 186 reads:

186     Striking out pleading

Without prejudice to the inherent jurisdiction of the Court in that regard, where a pleading—

(a)Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b)Is  likely  to  cause  prejudice,  embarrassment,  or  delay  in  the proceeding; or

(c)       Is otherwise an abuse of the process of the Court—

the Court may at any stage of the proceeding, on such terms as it thinks fit, order that the whole or any part of the pleading be struck out.

[21]     The principles which the Court applies in determining a strike application are to be found in Attorney-General v Prince & Gardner [1998]1 NZLR 262.

[22]     The Court will strike out claims on the basis of a limitation defence, but on the ground that the defence renders the proceeding frivolous, vexatious, or an abuse of  process as distinct from there being no cause of action.  This will only be done in a very  clear case:  Ronex Properties Limited v John Laing Construction Limited & Ors (1982) 3 All ER 961, 966; Stuart v Australian Guarantee Corporation (NZ) Limited (2002) 16 PRNZ 139..

[23]     The Courts are reluctant to strike out claims in a developing area of the law:

Bryan v Phillips NZ Limited (1994) 8 PRNZ 446.

[24]     It is trite law that an action founded on breach of contract must be brought within six years from the date on which the cause of action accrued, and that the cause of action accrues on the date of the breach.

[25]     The   law   distinguishes,   however,   between   contracts   which   require performance at a particular point (so that it can be said the obligation has been breached if not performed by that point) and those where the obligation requires ongoing performance (and is said to arise anew “day after day on each day there is a fresh breach” ):  Midland Bank Trust Co Limited v Hett, Stubbs & Kemp (a firm) [1978] 3 All ER 571; Bell v Peter Browne & Co (a firm) [1990] 3 All ER 124, 127. This distinction is accepted in New Zealand law: Stuart v Australian Guarantee Corporation Limited at para [28].

The limitation issue – when did the alleged breaches occur?

[26]     Te Whau pleads the following as breaches of the construction contract:

a)        Failure  to  build  to  a  proper  and  workmanlike  standard  and  in accordance with the plans and specifications (paragraph 73);

b)        Failure to build in accordance with the Building Act 1991 and the

Building Code (paragraph 74);

c)        Failure to remedy defects during the defect liability period (paragraph

75(a));

d)Failure to remedy defects after the defect liability period pursuant to guarantees given under the contract (paragraph 75(b)); and

e)        Failure to remedy defects in relation to joinery pursuant to the further guarantee given under the completion agreement (paragraph 75(c)).

[27]     Counsel  for  Livingstone  contended  that  these  were  in  fact  five  separate causes of action.   He submitted that the date of breach in relation to the first two alleged breaches (paragraphs 73 and 74) was when the works were carried out or when they were handed over to the owner on practical completion, and in relation to the third (paragraph 75(a)) that it was the date of expiry of the defects liability period:   (citing Hudson’s Building and Engineering Contracts (11th    Edition) para

4.292).   He submitted further that any steps taken to remedy a breach which had

already occurred merely mitigated the consequences of the breach and did not set a new limitation period running:   Bell v Peter Browne & Co; Johnson v Pitts (HC WHG CP10/01, 4 December 2001, Master Gambrill); Johnson v Watson [2003]

1 NZLR 626 (CA).

[28]     Counsel for Te Whau submitted that all of the pleaded contractual obligations were continuing.  He submitted that the cause of action did not accrue until the last date on which the relevant duty existed and could have been fulfilled:  T Kennedy- Grant, Construction Law in New Zealand (Butterworths, Wellington, 1999) at p 107. He said that this did not occur until Livingstone completed work on the building (13

December 2000) at the earliest, and arguably not until it advised Te Whau that it was not returning to undertake any further work (21 May 2001) or the date of issue of the final payment certificate (31 August 2001).  He further submitted that the issue was complex and should not be decided in the context of a strike out application.

[29]     Counsel referred me to two cases in support of their respective positions. Counsel for Livingstone relied on Stuart v Australian Guarantee Corporation (NZ) Ltd where the court had to consider whether a claim in contract was time-barred.  In

that case the plaintiff sued for breach of an implied term as to fitness for purpose in a contract for purchase of a log hauler with a telescoping tower.   The tower failed causing the log hauler to topple.   It was replaced but the replacement also failed. The plaintiff claimed that there was a continuing series of breaches (relying on Midland Bank Trust Co Limited where the English Court of Appeal found that that a limitation period had not expired because the defendant firm of solicitors was in continuing breach of an obligation to register an option to purchase a property until the property was sold and the option could no longer be registered).

[30]     Counsel for Te Whau relied on Clapperton v Orion New Zealand Limited (HC Palmerston North, CIV 2003-454-100, 17 September 2004, France J).  In that case the court upheld a decision by an Associate Judge not to strike out three causes of action for breach of contract on the grounds that they were time-barred.   The plaintiff had entered into a contract with the defendant for the supply, installation and commissioning of a commercial gas burner.  The burner exploded.  The plaintiff claimed that the burner was not of good quality and was not fit for its purpose, and was  not  properly  installed  or  commissioned.     The  defendant  argued  that  its obligations were not ongoing past the date that commissioning ceased. After considering authorities including Midland Bank, Bell v Peter Browne & Co, and Stuart  the  Court  decided  that  there  were  issues  over  the  obligations  under  the contract (in relation to commissioning and certification of the burner) which required further evidence.  It commented that the defendant’s conduct (it did not regard itself as having any ongoing responsibility) was a matter which it could advance in the substantive hearing.

[31]     These cases both illustrate the point that the timing of breach depends on the obligations under the contract.  I must decide whether they are sufficiently certain to determine on this strike out application.

[32]     The starting point must be the contractual provision for issue of a certificate of practical completion.  There is force in the submission of counsel for Livingstone that that is the date by which the parties contemplated that the obligations to build according to plans and to proper standard would be complete, with the exception of any additional  obligation  arising  under  the  defects  liability  clause.    This  is  the

conclusion of the learned authors of Hudson (para 4.292).  This view is expressed in relation to defects that are undetected at the date of practical completion, but that will not be of any significance in this case as Te Whau claims that all the defects identified in its statement of claim (at paragraph 51) were raised in the defects lists.

[33]     Counsel for Te Whau submitted that his argument as to an ongoing obligation was supported both by the terms of the contract and by the parties ongoing conduct (the latter being accepted as a relevant factor in Midland Bank).  He referred to three aspects of the contract: the defects liability clause (cl 46), the obligation to comply with the Building Act and Building Code (cl 104), and the provision for guarantees of the work (cl 53).   As to conduct he referred to the defects lists issued to Livingstone and Livingstone’s return to site on a number of occasions from date of practical completion on 30 April 1999 until 13 December 2000 to correct the notified defects.

[34]     The  learned  authors  of  Hudson  refer  to  the  defects  liability  clause  as imposing an additional obligation to the primary obligation to build in accordance with plans and to a proper standard.  This suggests that the primary obligations are complete.   The complicating factor in this case is that the notified defects were largely if  not  entirely identified  prior  to  practical  completion,  casting  doubt  on whether they were even complete.  However, whether it is the same or an additional obligation may be moot given that the defects which Te Whau pleads existed at both time.

[35]     Counsel for Livingstone submitted that the defects liability clause did not aid Te Whau because it contemplated defects being remedied before the expiry of the defects liability period (31 July 1999).   I do not accept that analysis.   The clause provides for defects to be notified within the defects period, but also for a date for completion of the remedial work to be completed.  There is no reason to restrict that date to the end of the defects liability period.  It is entirely conceivable that in some circumstances it will not be possible to fix a date for remedying a defect with any certainty.  It must then be open to the parties to accept that the work will be done within a reasonable time.   For example, it makes no sense to say that a defect of some complexity can be notified two days before the end of the period and be

required to be completed within that period.   Livingstone clearly did not take that view as evidenced by their actions in returning to perform work until December

2000.   In the absence of a fixed time for completion it must be arguable that the parties waived the requirement to stipulate a time and that a reasonable time can be implied.  This leaves open when a breach will occur.  It will be a question of fact to be decided on the circumstances of the case.

[36]     I  am  not  persuaded  that  the  other  contractual  provisions  relied  on  by Te Whau necessarily assist in deciding whether the performance obligations were ongoing.  The requirement to complete work in accordance with statutory provisions and regulatory consents (cl 104) is equally consistent with an expectation that this would be done by practical completion, or failing that as a notified defect.  Similarly, I do not regard the contractual provision (cl 53) for provision of guarantees necessarily to be an indicator of continuing obligations.   I take the view that the parties intended that guarantees be given (as they were), and that this constitutes performance  of that  contractual  obligation.    Thereafter,  further  obligations  arise under the guarantees. However, given the view that I have reached as to the uncertainty over duration of the defects liability period I will not express a firm view on these points.  They are matters that counsel can develop further at trial, when all the relevant facts are before the Courts.

[37]     In respect of the claims under the guarantees, I also note that the guarantees provided at the commencement of the contract were all executed as deeds so that a limitation period of 12 years applies:  s 4(3) Limitation Act 1950.

[38]     In summary, I accept the submission of counsel for Te Whau that the issue as to when the alleged breaches occurred (and hence the cause of action accrued) is complex.  It may well turn on the facts of the case, both the nature of the defects and the steps taken to remedy them both before and after the defects liability period.  I am  not  satisfied  that  the  date  of  breach  is  sufficiently  clear  to  determine  the limitation point on a strike out application.

Is there a reasonable cause of action in contract?

[39]     Livingstone also seeks strike out of the breach of contract claim on the ground that it does not disclose a reasonable cause of action.  It contends that the pleadings as they stand do not clearly state the contractual obligations on which Te Whau relies, and does not plead conduct which can constitute a breach of the construction contract or the guarantees.  Counsel for Livingstone submitted:

a)        There was no obligation to do any work under the contract after practical completion except in respect of defects properly notified under the defects liability clause.  He accepted that there was a continuing obligation possible in respect of defects validly notified, but argued that Livingstone had stopped working on that basis (it had insisted on payment for further work, particularly on the joinery).  He also argued that there was no pleading that the defects identified in paragraph 51 of the statement of claim had been notified in accordance with the defects liability clause.  On these grounds he submitted that there was no reasonable cause of action in respect of the first three alleged aspects of breach.

b)Further in respect of the third aspect of breach (failure to comply with the obligation to rectify defects), the obligation did not arise as the notices were invalid for failure to stipulate a date for performance.

c)        Even if the present pleading could be taken to refer to a breach of the contract guarantees (as distinct from a breach of the obligation under clause 53 to provide these guarantees) the statement of claim did not plead the separate guarantees, the obligations that arose out of them, or which of the defects in paragraph 51 of the statement of claim applied to them.

d)The pleading in respect of the guarantee given in the completion agreement of 12 September 2000 did not identify adequately the obligation alleged to have been breached.  Counsel for Te Whau had put its case on the basis that it was no more than an extension of the joinery guarantee given at the commencement of the contract rather

than a separate obligation arising out of the completion agreement. That was not clearly evident from the existing pleadings.

[40]     Counsel for Te Whau submitted that there was a reasonable cause of action in contract in its pleading that Livingstone had breached obligations under the contract to remedy the pleaded defects, in the form of the primary obligations (to build in accordance with plans and to a reasonable standard, and in accordance with the Building Act), in the obligation to remedy defective work, and in the obligation to provide guarantees and remedy defects under those guarantees.   He argued that it was appropriate to plead the guarantee under the completion agreement as part of the obligations under the construction contract as it merely extended the time for that guarantee.

[41]     The obligations under the construction contract are pleaded in paragraph 71 of the statement of claim.  The critical pleadings are those already identified, namely to construct in accordance with plans and to a proper standard, to comply with the Building Act and Building Code (cl 104) and to guarantee the contract works (cl 53). The obligation to correct defects is pleaded indirectly in the pleading of breach in para 75(a).  Counsel for Te Whau accepted in submissions that the obligations were ongoing only in respect of defects that were notified.   However, he said that this applied to all the pleaded defects.

[42]     Although the statement of claim is not pleaded as clearly as it could be, I accept that it discloses an arguable cause of action in contract.  However, the details of that cause of action, as they were explained by counsel in argument, are not readily apparent.  I accept the submission of counsel for Livingstone that this should not be left for the Court and counsel to work out at trial.  In particular the ongoing obligations under the contract should be specifically identified (particularly by reference to the obligation to remedy defects under clause 46).  The defects should also be identified specifically in relation to the ongoing obligations and to show that they were notified under clause 46.  As I have already indicated when considering the limitation point, I regard the contract guarantees as a separate obligation to the obligation under the contract to provide them.  If Te Whau wishes to allege breach of those guarantees it is to plead them separately as a distinct cause of action in respect

of individual guarantees, identifying the defects which it says are to be remedied under them, and the breaches alleged.  I note the advice of counsel for Te Whau that it does not advance an independent claim in respect of the guarantee given in the completion agreement (which would require pleading as a separate cause of action). Nevertheless, the extension to the joinery guarantee should be pleaded specifically as part of any cause of action in respect of the joinery guarantee.

[43]     I have not overlooked the argument of counsel for Livingstone that the claim under the defects liability clause cannot succeed because the notice was invalid. Counsel did not refer me to any authority on the point, but I consider that it must be arguable that the parties could and did agree to waive compliance.   Counsel for Livingstone referred me to evidence to the effect that Livingstone returned to do work after the defects liability period on the basis that it was to be paid for that work. The payment certificates show some payments for contract variations but do not identify the work to which they related.   Livingstone will be able to develop this point further if it wishes at a substantive hearing.  I do not regard it as sufficiently clear on the evidence before me to strike out the claim for breach of the construction contract.

Is there a reasonable cause of action in negligence?

[44]     Livingstone  applies  for  strike  out  of  Te  Whau’s  cause  of  action  for negligence on the grounds that the statement of claim fails to plead circumstances which allegedly give rise to a duty of care.  In response to a request for particulars Te Whau said that it relied on settled law in New Zealand that a builder owes its client a common law duty to exercise reasonable skill and care in carrying out work under the terms of its contract.  Counsel for Livingstone submits that the presumption of a duty of care that arises in certain categories of case (Rolls Royce [2005] 1 NZLR 324 does not extend to the construction of commercial premises, and Te Whau must plead the particular circumstances of this case which it says gives rise to a duty of care.

[45]     Counsel for Te Whau submits that a building owner may have concurrent remedies in tort and contract against a builder, provided the remedy in tort is not

excluded by the contract:  Riddell v Porteous [1999] 1 NZLR 1 (CA). He argued that there is nothing in the present contract to account unequivocally against the imposition of a duty of care and relies on Rowlands v Callow [1992] 1 NZLR 178,

191 for the proposition that it is the relationship created by the contract which gives rise to the common law duty.  He said that this case could be distinguished on that basis from the cases where the lack of a direct contractual relationship was taken to be a factor counting against imposition of a duty against a party further along a contractual chain:  Rolls Royce v Carter Holt Harvey; R M Turton v Kerslake.   In addition, counsel referred to the express recognition in the disputes resolution clause in the contract (cl 94) to any claim in tort.   Turning to Livingstone’s submission, counsel submitted that there was a live issue as to whether the duty of a builder to a building owner extended to a commercial building as well as a domestic dwelling, particularly where a building has both commercial and residential purposes.

[46]     This is not a case for strike out of the cause of action.  I accept that there is an issue as to whether a duty of care should be imposed, by reason of the mixed commercial and residential use of the building.  Whether it is appropriate to impose a duty of care on Livingstone is a matter to be determined on the facts of the particular case:  Three Meade Street Limited v Rotorua District Council [2005] 1 NZLR 504,

513.  It is not a matter to be determined in the context of a strike out application:

Bryan v Phillips.

[47]     Counsel for Te Whau submits that the claim is sufficiently pleaded as it stands.  I accept that the elements of the cause of action, as explained by counsel for Te Whau, can be discerned from the statement of claim.  However, the statement of claim can fairly be described as cursive, and given the live issue as to whether the duty should  extend  to  mixed  use  buildings,  it  would  assist  both the  Court  and Livingstone for particulars of the facts relied on as supporting a duty of care to be specifically pleaded.

Decision

[48]     Livingstone’s application to strike out is dismissed.

[49]     Te Whau is to file an amended statement of claim within 21 days:

a)       Pleading the cause of action for breach of ongoing aspects of the construction contract separately from its claims for breach of guarantees and providing particulars of those claims as set out in paras [42] and [47] above.

b)In respect of the cause of action in negligence, providing particulars of all circumstances relied upon to support the imposition of its duty of care.

[50]     I  consider  that  both  parties  have  had  some  measure  of  success  on  this application.  I make no order as to costs.

Associate Judge Abbott