Tucker v Musson Building Services Limited - [2018] NZHC 1089

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1996

[2018] NZHC 1089

BETWEEN
JAMES PATRICK TUCKER, NICHOLAS

RONALD TUCKER as trustees of the

TUCKER TRUST together with CLAIRE CHRISTINE ENDEAN as partners of the TUCKER TRUST/ENDEAN

PARTNERSHIP
Plaintiffs

AND

MUSSON BUILDING SERVICES LIMITED

First Defendant

AND

ANDREW ROSS MUSSON

Second Defendant

AND

JAMES STARNES

Third Defendant

Hearing:

[by formal proof]
17 May 2018

Appearances:

S Maloney for Plaintiffs

No appearance for Second Defendant

Judgment:

17 May 2018

ORAL JUDGMENT OF TOOGOOD J

[Against the Second Defendant only]

TUCKER & ORS v MUSSON BUILDING SERVICES LIMITED & ORS [2018] NZHC 1089 [17 May 2018]

Introduction

[1] On 21 April 2016, the plaintiffs (referred to collectively as Tucker) entered into a residential building contract under which Musson Building Services Limited (MBSL) agreed to construct and carry out building works at 44A Sprott Road, Kohimarama, Auckland (the Property). The second defendant, Mr A R Musson, assumed responsibility for, and exercised control over, the building works on behalf of MBSL. The third defendant, Mr Starnes, joined Mr Musson in commencing the building works in April 2016.

[2] Tucker commenced proceedings on 30 August 2017 against the defendants. The causes of action against Mr Musson alleged breaches of a duty to take reasonable care; breaches of his personal guarantee as to the way in which the works were to be carried out and conversion by unlawfully taking possession of cedar cladding intended to be used in the building works, ownership of which was alleged to have passed to Tucker.

[3] MBSL is in liquidation. Mr Starnes has filed a statement of defence. Mr Musson has taken no steps in the proceeding, but I am satisfied that he is aware of Tucker’s determination to obtain judgment by formal proof.

[4] The plaintiffs, therefore, have moved to obtain judgment against Mr Musson only. The cause of action based on the personal guarantee is not pursued, Tucker now accepting that, having been given orally, the guarantee does not comply with the requirements of the Property Law Act 2007 and is unenforceable.

[5] Evidence in support of Tucker’s claims under the first and third causes of action has been provided by affidavit, both as to liability and quantum.

[6] I have been assisted by Mr Grove's helpful summary of the plaintiffs' case in his memorandum of 1 May 2018, a copy of which was served on Mr Musson. The relevant factual background is as follows.

Breaches of duty of care

[7] During the construction of the building works, Tucker became concerned about the quality and pace of the building works performed by the defendants. In March 2017, Tucker observed that there had been no activity on the Property for several weeks. A site inspection on 20 March 2017 raised concerns about the standard of the building works. Sealing and backfilling of the walls had not been carried out, and the base cladding and framing were in poor condition. The…

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: [2018] NZHC 1089
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the plaintiffs, James Patrick Tucker, Nicholas Ronald Tucker as trustees of the Tucker Trust, and Claire Christine Endean as partners of the Tucker Trust/Endean Partnership, sought damages from Musson Building Services Limited (MBSL) and its representatives, Andrew Ross Musson and James Starnes. The plaintiffs alleged breaches of a duty to take reasonable care and conversion of cedar cladding intended for their building project at 44A Sprott Road, Kohimarama, Auckland. The case against MBSL was rendered moot as the company was in liquidation, while Mr Starnes filed a statement of defence. The court proceeded to grant judgment against Mr Musson only, as he had taken no steps in the proceeding.

The primary legal issues the court had to resolve were whether Mr Musson breached his duty of care by failing to ensure the building works met required standards and were completed in a reasonable time, and whether he converted the cedar cladding by unlawfully taking possession of it after ownership had passed to the plaintiffs. The court also had to determine the quantum of damages for these breaches.

The court found that Mr Musson breached his duty of care by failing to ensure the building works complied with all relevant regulations and standards, completing the works within a reasonable time, and taking reasonable care to avoid foreseeable loss from defective construction. This resulted in significant losses to the plaintiffs. Furthermore, Mr Musson was found to have converted the cedar cladding by interfering with the plaintiffs' rights to it and asserting an inconsistent right without lawful justification. The court awarded damages for these breaches, including $500,378.70 for the building defects and $31,050.00 for the stolen cedar cladding. Additionally, the court ordered Mr Musson to pay costs and disbursements as calculated by the plaintiffs' legal representative.

In summary, the court granted judgment against Mr Musson for the total amount of $531,428.70 in damages, along with costs and disbursements, totaling $17,883.00. The judgment was rendered on 17 May 2018, following a formal proof hearing where the plaintiffs presented their claims and evidence.

Orders