Wilkins v 77 Degree Builders Limited

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-000618

[2024] NZHC 2457

UNDER THE

Consumer Guarantees Act 1993

BETWEEN

MATTHEW COLIN WILKINS and HEATHER KAREN JENKINS

Plaintiffs

AND

77 DEGREE BUILDERS LIMITED

First Defendant

AND

SIMON ISAAC WASHBOURNE

Second Defendant

Hearing:	18 June 2024
Appearances:	E Farrell for Plaintiffs
Judgment:	29 August 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 29 August 2024 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date……………

WILKINS v 77 DEGREE BUILDERS LIMITED [2024] NZHC 2457 [29 August 2024]

Introduction

[1]                  Shortly after the plaintiffs, Matthew Wilkins and Heather Jenkins (the Wilkins), bought a property in suburban Christchurch they decided to carry out renovations. To that end, they met the second defendant licensed builder Simon Washbourne. Mr Washbourne was, and is, a shareholder and the sole director of the first defendant building company, 77 Degree Builders Ltd (77DB).

[2]                  The Wilkins entered into a fixed price contract with 77DB to undertake the renovations. The works were estimated to take approximately eight weeks. In the event, 77DB was on site for over one year and four months. The works exceeded the fixed price and, the Wilkins say, were defective in multiple respects, but principally due to a failure to instal replacement cladding using the necessary cavity system. Because the renovations went so badly wrong the Wilkins must undertake significant further building to remediate the defective work, at significant cost.

[3]                  Due to the defective  work  the  Wilkins  sue  the  building  company  and  Mr Washbourne.

[4]They claim against the company for:

(a)breach of contract;

(b)negligence; and

(c)a breach of s 28, Consumer Guarantees Act 1993 (CGA).

[5]The Wilkins sue Mr Washbourne personally in negligence.

Relief sought

[6]                  Orders are sought that the defendants are jointly and severally liable for damages of $400,852.75, being the cost of repairing the defective work; general damages of $25,000 to each plaintiff ($50,000); interest and costs.

Renovations

[7]                  Mr Wilkins, a software developer and Ms Jenkins, a scientist do not have any experience in the construction industry.

[8]                  The property  is  the  Wilkins’  family  home,  its  purchase  was  settled  on  9 December 2020. It is a 347 m3 property of timber framed construction on a concrete slab. When the plaintiffs purchased it, the property was clad with red bricks and horizontal kahikatea weatherboards, with long-run roofing and butynol above dormer windows. The windows were singled glazed with aluminium joinery. Built in 1985, the home was in moderately good condition, however with some deterioration of the butynol and weatherboards.

[9]                  Mr Wilkins and Ms Jenkins decided the cladding, butynol and windows needed some maintenance or renovation. A friend recommended Mr Washbourne to them and they first met with him on 18 December 2020.

[10]              Over the  next  eight months they had many meetings at the property  with  Mr Washbourne and on occasions subcontractors he introduced. Mr Washbourne said he would arrange the entire project.…