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Weaver v HML Nominees Ltd

Weaver v HML Nominees Ltd

Case [2015] NZHC 2080 28 August 2015

Contract Formation

Breach of Contract

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3130 [2015] NZHC 2080

BETWEEN
ANN-LOUISE EVELYN CHANTAL WEAVER

and GRAHAM WILLIAM ANDERSON

Plaintiffs

AND

HML NOMINEES LIMITED First Defendant

HELEN MARTHA MOORE

Second Defendant

Continued…

Hearing: 9, 10, 11, 12, 13, 16, 17, 18, 24 and 25 March 2015

Counsel:

T J Rainey and J Heard for plaintiffs
D R Bigio and C I Hadlee for first and second defendants
D J Barr and S Meares for third defendant
No appearance for first and tenth third party
N J Scampion and C Campbell for seventh third party
No appearance for eighth third party
H Rice for ninth third party

Judgment:

28 August 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 28 August 2015 at 4:30pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Rainey Law, Auckland LeeSalmonLong, Auckland Simpson Grierson, Auckland Wilson Harle, Auckland
Rice & Co, Auckland

Counsel: D R Bigio, Shortland Chambers, Auckland
N J Scampion, Shortland Chambers, Auckland

WEAVER & ANDERSON v HML NOMINEES LIMITED [2015] NZHC 2080 [28 August 2015]

AUCKLAND COUNCIL

Third Defendant

STONESCAPES LIMITED (IN LIQUIDATION)

First Third Party

FLEXCO (NZ) LIMITED

Second Third Party

ASHTON MITCHELL ARCHITECTS LIMITED (DISCONTINUED)

Third Third Party

BUILDING CODE CONSULTANTS LIMITED (DISCONTINUED)

Fourth Third Party

KELVIN LEONARD WALLS (DISCONTINUED)

Fifth Third Party

COOPER ROOFING COMPANY (DISCONTINUED)

Sixth Third Party

FLEXCO (NZ) LIMITED

Seventh Third Party

MOHAN ROOFING SERVICES LIMITED

Eighth Third Party

POINT CONSTRUCTION LIMITED (DISCONTINUED)

Ninth Third Party

STONESCAPES LIMITED (IN LIQUIDATION)

Tenth Third Party

JACKSON CLAPPERTON AND PARTNERS LIMITED (DISCONTINUED)

Eleventh Third Party

Table of Contents

Introduction ..........................................................................................................[1]

What are the defects?...........................................................................................[7] Stone cladding [7] Garage cladding [23] Garage roof ]29] The chimney flashing [35] Main entrance to the house [36] Flu vent [47] Summary/conclusion on defects [49]

Is HML Nominees’ liable for the defects? ........................................................[54] The scope of the vendor warranties  [55] Were the vendor warranties breached in relation to the stone cladding
defects?  [68] Were the vendor warranties breached in relation to the chimney flashing
and flu defects?  [70] Did HML Nominees make misrepresentations regarding the property?         [71]

Is Ms Moore liable for any of the defects? .......................................................[80]

Is the Council liable in respect of its issue of building consents?...................[86]

Is the Council liable in respect of its inspections/issue of code
compliance certificates? .....................................................................................[89]
Relevant legal principles [89] The stone cladding defects [92] Chimney flashing and flu defects [96]

Estoppel issues ....................................................................................................[97] Relevant legal principles  [98] Was the Chief Executive’s decision a judicial decision?  [101] Are the parties the same?  [111] Did the Chief Executive determine an identical issue to one that is
raised in this case?  [113] Should issue estoppel apply in this case?  [119]
The Council’s third party claim against Stonescapes ...................................[131] The Council’s third party claim against Flexco ............................................[136] HML Nominees’ third party claim against Flexco ........................................[139]
Overview of the claim  [139]
The February and April 2007 meetings  [143] Was Flexco negligent?   [163]

HML Nominees’ cross claim against the Council ..........................................[166] General damages

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.

Continue reading Weaver v HML Nominees Ltd

Details

AGLC: Weaver v HML Nominees Ltd [2015] NZHC 2080
Case: [2015] NZHC 2080
Decision Date: 28 August 2015

CaseChat Overview and Summary

In Weaver v HML Nominees Limited, the plaintiffs Ann-Louise Weaver and Graham Anderson sought to recover losses they allegedly suffered as a result of the failure of remedial work undertaken by the previous owner of the property, HML Nominees Limited, in 2005 and 2006. The plaintiffs' claims were against HML Nominees (as vendor), Helen Martha Moore (as alleged project manager of aspects of the works), and the Auckland Council (as the regulatory authority who issued the building consents and code compliance certificates). The Council, in turn, joined nine third parties. The case involved a comprehensive analysis of various defects in the property, including stone cladding, garage cladding, garage roof, chimney flashing, main entrance, and flu vent. The court found that a full re-clad of the stone cladding was necessary, and multiple factors contributed to its failure, including the substitution of Miracryl for the specified Flexi-Seal System, incorrect mixing and installation of the Miracryl, and the use of spot adhesion to affix the stone slips to the Eterpan. The court held that HML Nominees breached the vendor warranties in relation to the stone cladding, but not in relation to other defects. The plaintiffs' claim for misrepresentation against HML Nominees failed, as the court found that the plaintiffs were not induced to purchase the property by the real estate agent's statements. The claim against Helen Martha Moore also failed, as the court found no evidence that she played an operative role in the decision to substitute Miracryl for Flexi-Seal. The Auckland Council was found liable for its failure to take necessary steps during inspections and the issue of code compliance certificates, which contributed to the plaintiffs' loss. The court awarded the plaintiffs $106,406.22 from HML Nominees and $108,525.20 from the Council, including general damages and interest. The Council was entitled to a contribution of 60 per cent from Stonescapes in respect of its liability.

Orders