Tucker v Welch Construction (1998) Limited (in liquidation)
[2012] NZHC 514
•21 March 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV 2011-419-335 [2012] NZHC 514
BETWEEN GARRY JOHN TUCKER AND PAULINE ALICE TUCKER
Plaintiffs
ANDWELCH CONSTRUCTION (1998) LIMITED (IN LIQUIDATION)
First Defendant
ANDGRANT CROOK CONSULTING ENGINEERS LIMITED
Second Defendant
ANDGRANT DAVID CROOK Third Defendant
ANDHAURAKI DISTRICT COUNCIL Fourth Defendant
Hearing: 20 March 2012
Counsel: DA Cowan for plaintiffs
SW Hood for first defendant
Judgment: 21 March 2012
JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for further and better particulars]
This judgment was delivered by me on 21 March 2012 at 2pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Rainey Law, PO Box 1648, Auckland 1140
Norris Ward McKinnon, Private Bag 3098, Hamilton 3240
TUCKER V WELCH CONSTRUCTION (1998) LIMITED (IN LIQUIDATION) HC HAM CIV 2011-419-335 [21 March 2012]
The application
[1] The first defendant applies for further and better particulars of the alleged breaches that are pleaded in paragraphs [43](a), (b) and (c) of the plaintiffs’ amended statement of claim dated 9 November 2011.
[2] The application is made in reliance on rr 5.21 and 5.26. Rule 5.21 provides:
5.21 Notice requiring further particulars or more explicit pleading
(1) A party may, by notice, require any other party—
(a) to give any further particulars that may be necessary to give fair notice of—
(i) the cause of action or ground of defence; or
(ii) the particulars required by these rules; or
(b) to file and serve a more explicit statement of claim or of defence or counterclaim.
(2) A notice must indicate as clearly as possible the points on which the pleading is considered defective.
(3) If the party on whom a notice is served neglects or refuses to comply with the notice within 5 working days after its service, the court may, if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.
(4) Even if no notice has been given under this rule, the court may on its own initiative order a more explicit pleading to be filed and served.
Rule 5.26 provides:
5.26 Statement of claim to show nature of claim
The statement of claim—
(a) must show the general nature of the plaintiff's claim to the relief sought; and
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff's cause of action; and
(c) must state specifically the basis of any claim for interest and the rate at which interest is claimed; and
(d) in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.
The opposition
[3] The plaintiffs oppose the application and say the particulars sought in essence are matters of evidence that are not required to be pleaded and will be fully disclosed with the exchange of briefs of evidence. The plaintiffs say that what has been pleaded gives the first defendant notice of the nature of the case to be met.
Background
[4] The plaintiffs own a residential property at 21 Benner Drive, Ngatea. The first defendant was the builder of the house. The second defendant was the engineer concerned in the construction and the third defendant was the director and employee of the second defendant. The fourth defendant was the local authority. The application concerns the pleading against the first defendant only.
[5] The plaintiffs entered into a building contract with the first defendant on
14 September 2004 for the design and construction of the house. The first defendant built the house between 5 November 2004 and 11 April 2005. Between June 2005 and November 2006 the plaintiffs noticed minor problems with the house, which they raised with the first defendant. There was ongoing contact between the plaintiffs and the first defendant concerning problems with the house.
[6] The plaintiffs received an expert report on 26 August 2010. The plaintiffs plead:
31.On or about 26 August 2010 the Tuckers received a report from their experts on the Property and the Dwelling, with excerpts of the damage currently in existence, attached as Schedule 1 to this claim. The report confirms that there has been differential settlement to the floor slab and perimeter walls causing:
(a) Cracking of the plaster board wall linings;
(b) Cracking to the joinery and external brick cladding;
(c) Racking of window and door frames;
(d) Doors jamming and not functioning properly;
(e) Ceiling linings pulling away from supporting frame; (f) Ceilings creasing; and
(g) Cracking on joint in external corner of coving to master bedroom and the family rooms.
(“the Damage”)
32.The Tuckers expert in its report concludes that cause of the Damage is the inadequate Foundation Design for the site conditions, in particular the hardfill platform upon which the house has been constructed. The cause of the observed distortion of the house is the differential vertical displacement of the hardfill building platform, due to primary consolidation and secondary compression of the underlying highly compressible alluvial sediments in response to the loading imposed by the hardfill and building foundations, which has resulted in the corresponding distortion of the concrete slab and foundations (which are located on the hardfill building platform).
(“the Defects”)
33.In order to repair the Damage and mitigate the underlying cause (the Defects) the Dwelling will have to be removed from the Property and completely rebuilt at an estimated minimum cost of $395,320.55 (including GST), full particulars of which are provided in a Quantity Surveyors assessment attached I Schedule 2 of this claim.
[7] The plaintiffs plead as their first cause of action breach of a guarantee provided by the first defendant. It is not necessary to analysis that cause of action for the purposes of this application.
[8] The plaintiffs plead a second cause of action in negligence. It is this cause of action that is the subject of the application for further particulars.
The amended statement of claim
[9] On 9 November 2011 the plaintiffs filed an amended statement of claim. For the purposes of this application the important paragraphs are those set out in [42], [43] and [44] which are as follows:
42.The Tuckers repeat the allegations made in paragraphs 1 to 35 above and say that at all material times, Welch owed the plaintiffs a duty to
take reasonable care in or while performing the construction contract.
43. In breach of the abovementioned duty of care Welch failed to:
(a) Exercise due skill and care in selecting, instructing and supervising the Foundation Design and inspection work of Grant Crook Limited and/or Grant Crook, engaged by it during the Construction Period, complied with the performance requirements of the New Zealand Building Code.
(b) Exercise due skill and care to ensure its design of the stiff supported elements in the Dwelling; such as interior partitions formed from plasterboard-lined timber framing, or external cladding such as brick veneer, could withstand differential settlements.
(c) Exercise due skill and care to ensure the concrete slab and foundations (which are located on the hardfill building platform) built during the Construction Period were not overloaded causing distortion to the Dwelling.
44.The negligent acts or omissions of Welch Construction as particularised above are a cause of the need to remove the Dwelling from the Property and rebuild it.
The particulars sought
[10] Mr Hood advised that the application could now be modified from what was originally sought. The first defendant now seeks the following:
(a) In respect of paragraph 43(a) of the amended statement of claim, the date that the first defendant is alleged to have selected, instructed and engaged the second and/or third defendant during the construction period. In addition, the specific acts or omissions by which the first defendant failed to exercise due skill and care in selecting, instructing and supervising the foundation design and inspection work of the second and/or third defendant;
(b)In respect of paragraph 43(b) of the amended statement of claim, the specific acts or omissions by which the first defendant is alleged to have failed to exercise due skill and care to ensure its design of the
stiff elements in the dwelling could withstand differential settlement;
and
(c) In respect of paragraph 43(c) of the amended statement of claim, the specific acts or omissions by which the first defendant is alleged to have failed to exercise due skill and care to ensure the concrete slab and foundations were not overloaded causing distortion to the building.
The court’s approach to pleadings applications
[11] In Price Waterhouse v Fortex Group Ltd the Court of Appeal gave the following guidance as to the importance of pleadings:[1]
[1] Price Waterhouse v Fortex Group Ltd CA 179/98, 30 November 1998, at 17–18 per McGechan J.
It has become fashionable in some quarters to regard the pleadings as being of little importance. There was an echo of that approach in the implicit suggestion floated in this case that exchange of briefs of evidence before the trial might be seen as curing any lack of particularity of pleadings. Any such view is misguided. Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.
… Pleadings should be read as conveying what they would reasonably convey, in the context of the case, to a sensible legal mind. Even less are we advocating prolixity of pleadings, or the raising of every conceivable cause of action irrespective of its potential for success; this type of pleading often contains the additional flaw of overlooking R114 which requires each cause of action to be separately pleaded. What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. …
The principles are well enough known. Difficulties lie in application in marginal situations.
The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.
... The pleader and Court simply ask “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”. This is not, under modern practice, simply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation.
Analysis
[12] The particulars sought in respect of paragraph 43(a) is important because the first defendant’s director has sworn an affidavit in which he says it was the plaintiffs, not the first defendant, who selected, engaged, and instructed the engineer. This, then, is not a situation where the defendant is fully apprised of the facts at all. In my view, the particulars sought as to the date that the first defendant is alleged to have selected, instructed and engaged the second and/or third defendants during the construction period is important and should be pleaded.
[13] The next matter raised relative to paragraph 43(a) concerns the specific acts or omissions by which the first defendant failed to exercise due skill and care. The current statement of claim gives no guidance at all as to what should have been done by the first defendant, or what was omitted to be done by the first defendant, in relation to the selection, instruction and engagement of the engineer. Mr Cowan acknowledged that there was no difficulty in the plaintiffs supplying this information. In my view, it must be supplied.
[14] In relation to paragraph 43(b), once again there is no particularisation of how the first defendant failed to ensure its design of the stiff elements could withstand differential settlement. The court and first defendant are simply in the dark as to what the basis for this allegation of negligence is. Once again, Mr Cowan acknowledged that there was no difficulty in supply the particular.
[15] In relation to paragraph 43(c), the position is similar. There is simply no particularisation of how it is that the first defendant failed exercise due skill and care to ensure the concrete slab and foundations were not overloaded causing distortion to the dwelling. What should have been done is simply not pleaded.
[16] What the plaintiffs have pleaded in this case is just a generalised allegation of negligence in relation to certain aspects of the work that was undertaken without identifying, with any particularity, what it is that should have been done in each case. This current pleading does not give a basis upon which evidence in rebuttal of the allegation could properly be pled. I am concerned, that if it were left without particularisation, there is a real risk that the first defendant could be embarrassed at trial and might be required to seek an adjournment to respond to what is alleged with precision in the evidence. That should not be allowed to happen and, in fact, will not if the allegations are properly particularised.
[17] I gave, as an example to counsel when this application was discussed, the simple case of a motor accident caused by the negligence of a driver. To simply plead that the accident was caused by the driver’s negligence without saying in what respects that negligence was manifest, for example, travelling too fast, failing to be able to stop within the clear distance ahead of the driver, which are quite standard pleadings in these sorts of cases, is simply to leave the court and the opposite party without notice of the precise case to be answered.
[18] The first defendant is entitled to the particulars sought. Mr Cowan confirmed to me that there was no embarrassment or difficulty in the particulars being provided by way of an amended statement of claim to be filed within 15 working days from the issue of my judgment. I will adopt that timeframe in the orders that I make.
[19] This case has been allocated a trial date and trial directions have been made. Save for costs on this application, there appears to be no other step that needs to be the subject of court determination prior to the trial of this proceeding. For that reason, no additional directions are made.
Costs
[20] Counsel were agreed that the appropriate basis for an order for costs was based on Category 2 Band B for a ¼ day. That is adopted in the order that I make.
Orders
[21] I order that the plaintiffs shall:
(a) File and serve an amended statement of claim within 15 working days of the date of this judgment which:
(i)Specifies in respect of the current paragraph 43(a) of the amended statement of claim, the date that the first defendant is alleged to have selected, instructed and engaged the second and/or third defendant during the construction period and particularises the specific acts or omissions by which the first defendant was alleged to have failed to exercise due skill and care in selecting, instructing and supervising the foundation design and inspection work of the second and/or third defendant;
(ii)Particularises in respect of the current paragraph 43(b) of the current amended statement of claim, the specific acts or omissions by which the first defendant is alleged to have failed to exercise due skill and care to ensure its design of stiff elements in the dwelling could withstand differential settlement;
(iii) Particularises in respect in respect of the current paragraph
43(c) of the current amended statement of claim, the specific acts or omissions by which the first defendant is alleged to have failed to exercise due skill and care to ensure the concrete slab and foundations were not overloaded causing distortion to the dwelling;
(b)Pay the first defendant’s costs in relation to this application based on Category 2 Band B and for a ¼ day defended interlocutory hearing, together with disbursements as fixed by the Registrar.
JA Faire
Associate Judge
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