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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV
2009-404-301
BETWEEN RAMAN RANCHHODJI PATEL
Appellant
AND RAYMOND MARTIN OFFORD AND
SUSAN MARIE OFFORD
First Respondents
AND
AUCKLAND CITY COUNCIL
Second Respondent
AND
RICHARD JOHN PEARSON
Third Respondent
AND
PETER PHILLIPS SR
Fourth Respondent
AND
CLIVE PARKER
Fifth Respondent
Hearing: 9 June 2009
Counsel:
G D R Shand for Appellant
No appearance by or on behalf of First Respondents
F Divich for Second
Respondent
J N Bierre for Third Respondent (leave to withdraw granted)
D A Cowan for Fourth Respondent
(leave to withdraw granted)
No appearance by or on behalf of Fifth Respondent
Judgment: 16 June 2009
JUDGMENT OF HEATH J
This judgment was delivered by me on 16 June 2009 at 9.30am pursuant to Rule
11.5 of the High
Court Rules
Registrar/Deputy Registrar
PATEL V OFFORD AND ORS HC AK CIV 2009-404-301 16 June 2009
Introduction
[1] Mr Patel appeals against a decision given in
the Weathertight Homes
Tribunal (the Tribunal) on 5 December 2008. He does not dispute liability but
challenges the Adjudicator's
finding that he was a "developer" and the contribution
that he ought to make to co-defendants as a joint tortfeasor.
Background
[2] In 1995 Rite Price Construction Ltd acquired land in John Rymer Place,
Kohimarama. Mr Patel was the sole director and principal
shareholder of that
company. The intention was to build two dwellings on the property, one for Mr
Patel and his wife to occupy and
the other to sell.
[3] Construction on the first house began early in 1996. That dwelling was
completed by October 1997. Around
August 1998, construction of the second house
began. That was completed in January 1999.
[4] Mr and Mrs Offord bought the second
dwelling. They occupied it until mid
2004. When they placed the property on the market for sale, a prospective purchaser
obtained
a pre-purchase inspection report. Serious defects in waterproofing were
identified. The sale did not proceed.
[5] Mr and Mrs
Offord brought claims in the Tribunal to recover damages. Mr
Patel and Rite Price Construction Ltd were sued as project managers
and developers.
The Auckland City Council (the Council) was sued as the territorial authority with
obligations to inspect the premises
before issuing a code compliance certificate. Mr
Pearson, (the architect), Mr Phillips, (the builder) and Mr Parker (the plasterer)
were
also sued, in respect of work undertaken by each.
Proceedings in the Tribunal
[6] In accordance with the Tribunal's usual
practice, an Experts' Conference was
convened on 3 October 2008. It was attended by representatives of Mr and Mrs
Offord, Mr Patel
and Mr Pearson. An assessor appointed by the Weathertight
Homes Resolution Service was also present. Remedial costs were also agreed,
in a
total sum of $403,220.15 (the proved remedial costs).
[7] The experts agreed that there were five significant causes of
damage to the
house. They were:
a) The balustrade walls were waterproofed inadequately. These walls
were
around the balconies, the garage and the deck. This defect
represented approximately 40% of the proved remedial costs.
b) The parapet walls were waterproofed inadequately.
They were the
lower walls around the outside of the decks and the garage, containing
the guttering. These
defects represented 30% of the proved remedial
costs.
c) Failure to install side or sill flashings around
the aluminium windows
and doors. This represented 25% of the proved remedial costs.
d) In several locations,
plaster had been penetrated as a result of
inadequate sealing or flashing; an example being around the area of an
electric meter box. These factors caused 2.5% of the proved remedial
costs.
e) Inadequate
ground clearance in the south eastern corner of the garage.
This defect allowed water to seep into the stucco cladding
from
ground level. This caused 2.5% of the proved remedial costs.
The Tribunal's decision
(a) Liability
[8]
The Adjudicator (Mr S G Lockhart QC) found that Mr and Mrs Offord had
proved their claim and awarded damages in the amount agreed
as proved remedial
costs.
[9] Mr Patel was held liable in tort, both as a project manager and developer, for
failing to supervise
the building work adequately.
[10] The Council was held liable on the basis that it failed to inspect work carried
out to erect
the dwelling in accordance with the building consent that it had issued
and for certifying negligently compliance with the Building
Code.
[11] Mr Pearson was held responsible for failing to draw plans containing
adequate detail for the balustrade positioning
and failing to specify materials to be
used in its construction and capping. While the Adjudicator accepted that variations
to the
plans were made during the course of building work, he held that Mr Pearson
should have drawn Mr Patel's attention to the fact that
the drawings did not provide
sufficient detail, in respect of a sloped timber capping required for the balustrade.
[12] Mr
Phillips was engaged as a "labour only" contractor to carry out carpentry
work on the property. He was neither a master builder nor
a registered builder. Mr
Phillips accepted in evidence that he was responsible for "a greater part of the
construction of the dwelling,
which included the framing and the installation of the
windows": see the Adjudicator's decision at para [88]. The Tribunal held that
Mr
Phillips was negligent in two respects:
a) first, in constructing inadequately the flat top balustrade walls and
b) second, in installing inadequately the Hardibacker.
[13] Mr Parker did not participate in the adjudication process.
Nevertheless, on
the evidence given at the hearing, the Adjudicator found that he undertook
negligently some of the plastering work,
both in respect of the Hardibacker and the
block wall. The Adjudicator accepted evidence from Mr Phillips that the flashings
for
the windows were the responsibility of the plasterer.
(b) Contribution
[14] For the purpose of assessing contributions to the
damages ordered, as among
the five joint tortfeasors, the Adjudicator said:
[109] Mr Patel has responsibility for all five
major causes of damage. It was
Mr Patel's responsibility as the developer and the project manager to carry
out and
ensure that the building works of the house were carried out in
accordance with the Building Consent and the Building Code.
[110] [The Council's] role was to inspect as it progressed the building work
of the house and grounds. The Tribunal
has held that there were failures by
the third respondent in respect of inspecting and observing errors in the
construction
work, and then ensuring that such errors were eliminated.
[111] ..., Mr Pearson the architect, owed a duty of care in respect
of the
building plans which he drew. It has been held that his plans lacked
sufficient detail in respect of the parapets and balustrade.
[112] ..., Mr P Phillips, was a "labour-only" carpenter and his liability is
limited to a very large extent as he
relied on directions received from the
first respondent.
[113] ..., Mr C Parker, owed a duty of care in respect of
the plastering work
he carried out. The deficiencies in the plaster work was his responsibility.
[15] The Adjudicator assessed
each liable party's contribution by reference to the
percentage of total loss caused by each defect. In tabulated form (taken from
the
decision under appeal), the calculations are set out below:
Defect 1 40% of total cause of damage Balustrade
% of total liability % of respondents' % of total
(joint and several)
apportionment for liability
defect 1
Mr Patel
100 40 16
Auckland City 100 22.5
9
Council
Mr Pearson 100 17.5 7
Mr Phillips
100 10 4
Mr Parker 100
10 4
Defect 2 30% of total cause of damage - Parapets
% of total liability % of respondents'
% of total
(joint and several) apportionment for liability
defect 2
Mr Patel 100 50 15
Auckland City 100
30 9
Council
Mr Pearson 0 0 0
Mr Phillips
100 10 3
Mr Parker 100 10
3
Defect 3 25% of total cause of damage Window joinery
% of total liability % of respondents'
% of total
(joint and several) apportionment for liability
defect 3
Mr Patel 100 64 16
Auckland City 100
8 2
Council
Mr Pearson 0 0 0
Mr Phillips
0 0 0
Mr Parker 100 28
7
Defect 4 2.5% of total cause of damage - Penetrations
% of total liability % of respondents'
% of total
(joint and several) apportionment for liability
defect 4
Mr Patel 100 60 1.5
Auckland City 100
40 1
Council
Mr Pearson 0 0 0
Mr Phillips
0 0 0
Mr Parker 0 0
0
Defect 5 2.5% of total cause of damage Ground clearance
% of total liability % of respondents'
% of total
(joint and several) apportionment for liability
defect 5
Mr Patel 100 60 1.5
Auckland City 100
40 1
Council
Mr Pearson 0 0 0
Mr Phillips
0 0 0
Mr Parker 0 0 0
TOTAL Total % of liability Total % of
apportionment
Mr Patel 100 50
Auckland City 100
22
Council
Mr Pearson 40 7
Mr Phillips 70
7
Mr Parker 95 14
The appeal
[16] The appeal is brought under s 93
of the Weathertight Homes Resolution
Service Act 2006. The appeal is by way of re-hearing.
[17] To the extent that the Court
is asked to interfere in the apportionment of
contribution as among joint tortfeasors, it may do so if satisfied that the
Adjudicator's
decision was "unreasonable": Steel Structures Ltd v Rangitikei County
[1974] 2 NZLR 306 (CA) at 309-310.
[18] Mr Pearson, the architect, cross appealed against Mr Patel, in relation to the
calculation of their
respective contributions as joint tortfeasors. However, before the
hearing counsel for those parties reached an accommodation whereby
each
abandoned their appeal against the other, with no order as to costs. Mr Bierre, for
Mr Pearson, was given leave to withdraw.
[19] Mr Parker took no steps on appeal.
[20] Mr Phillips has advised the Court that he will abide the outcome of the
appeal. He cannot afford to participate further and makes it clear that if his
contribution were increased, he intends to take
steps to adjudge himself bankrupt.
Counsel for Mr Phillips, Mr Cowan, was given leave to withdraw at the
commencement of the hearing.
[21] As Mr and Mrs Offord have received an award in their favour, they did not
participate in the appeal.
Competing submissions
[22] Mr Shand, for Mr Patel, submits that the Judge ought not to have found Mr
Patel to be a "developer" of the property.
He submits that that finding coloured the
Adjudicator's view of Mr Patel's role in the development and resulted in an
excessive assessment
of his contribution to the causes of loss.
[23] By reference to s 17(1) and (2) of the Law Reform Act 1936, Mr Shand
submitted
that the assessment of Mr Patel's contribution to the loss was
unreasonable. He identified the need for the Court to consider both
the causative
potency of conduct of a particular defendant and the relative blameworthiness of the
parties. Mr Shand referred to
Farry v Carter (High Court Wellington, CP 123/997, 4
December 1998, Gendall J) at p 14 and Aberdeen v Township of Langley [2007]
BCSC 993 at paras [62] and [63].
[24] In short, Mr Shand's complaint was that Mr Patel had been held responsible
in respect of defects
for which others carried out the primary work. For example, in
relation to the balustrades and parapets, he submitted that both Mr
Phillips and Mr
Parker, as those responsible for construction, ought to have borne the bulk of
responsibility.
[25] In relation
to the problems arising from inadequate joints to the windows, Mr
Shand submitted that Mr Patel's liability had been fixed far too
high, particularly in
relation to the apportionments made in respect of both the Council and the plasterer.
[26] Mr Shand accepted
that Mr Patel's liability could not be less than that
required of the Council.
[27] Ms Divich, for the Council, submitted that
this was not a case in which it was
appropriate for me to interfere with relative contributions to loss determined by an
Adjudicator
who heard and saw witnesses give evidence over a period of 7 days.
She submitted that the contribution findings made by the Adjudicator
were open to
him on the evidence and ought not to be disturbed on appeal.
[28] On the finding that Mr Patel was a "developer",
Ms Divich relies on my
judgment in Body Corporate 199348 v Nielsen (High Court Auckland, CIV 2004-
404-3989, 3 December 2008) in
which I expressed the view that the word
"developer" was not a term of art. She submitted that all that was required was a
determination
of relative responsibility of a tortfeasor, irrespective of the label used
to describe his or her role in a building development.
Analysis
(a) The "developer" finding
[29] A "developer" owes a non delegable duty to an owner of a property: see
Mount Albert
Borough Council v Johnson [1979] 2 NZLR 234 (CA). That duty
extends, in some cases, to directors of corporate developers: Morton v Douglas
Homes Ltd [1984] 2 NZLR 548 (HC) at 595; cf Trevor Ivory Ltd v Anderson [1992]
2 NZLR 597 (CA) at 523 (Cooke P). However, I do not consider that the term used
to describe the functions carried out by an individual is determinative, for the reasons
I gave in Nielsen, at paras [66] and [67].
[30] Mr Patel does not dispute liability. The Adjudicator explained Mr Patel's
role:
[27] Mr Patel acknowledges that
he undertook the role of project manager in
the building of the subject dwelling, as he was responsible for undertaking
the following tasks:
(a) he applied for and was granted the building permit;
(b) called
for inspections by the Auckland City Council;
(c) entered into a contract with many of the labourers and arranged
for materials to be delivered in his own personal name as
opposed to using the name of the
second respondent company;
(d) he had previous experience as a project manager;
(e) he was on the
site early each day and stayed on site for most of
the day;
(f) he was involved in the overall
control of the construction of the
house;
(g) he was regularly involved in giving directions
to the contractors
and explaining the work that he wanted done;
(h) he physically carried out
some of the work himself, such as the
cladding up the hardibacker; and
(i) he did not employ
an architect or a project manager or a
construction manager to oversee the construction of the house.
...
[30] ... in addition to Mr Patel's involvement as a project manager ..., Mr
Patel also:
(a) held
an architectural qualification;
(b) selected and approved the contractors and the supplies of materials;
(c)
made alterations or authorised changes from the architect's drawings
or plans;
(d) no other individual
or individuals were employed as developers;
(e) together with his wife, were the only persons who would gain
financially if a profit was obtained.
[31] In my view, it was unnecessary for the Adjudicator to make any finding that
Mr Patel was a "developer", of the type to which the Mount Albert Borough Council
v Johnson duty attached. The finding was unnecessary
for the reasons set out in
Nielsen, at paras [66] and [67]. All that was required was for the Adjudicator to
weigh in the balance
the tasks undertaken by Mr Patel in relation to work undertaken
negligently by other actors and then to determine relative contributions
to the
damages awarded.
[32] In holding that the finding that Mr Patel was a "developer" was unnecessary,
I do not criticise
the Adjudicator. My judgment in Nielsen was delivered only two
days before the Adjudicator's decision was released.
(b) Contribution
issues
(i) Principles
[33] The tables set out at para [15] above identify clearly the percentage of
responsibility
attributed to each negligent party in relation to each defect. Those
percentage calculations have been made first on the basis of
the percentage of the
particular cause to the total damage, from which a percentage figure relative to the
total liability of all
joint tortfeasors has been extrapolated.
[34] Section 17(2) of the Law Reform Act 1936 mandates the test to be applied in
determining
the amount of contribution recoverable as between joint and several
tortfeasors. The touchstone is what a Court finds "to be just
and equitable having
regard to the extent of that person's responsibility for the damage".
[35] The question of contribution
for apportionment of liability is an exercise in
judgment. It is not a mathematical exercise. In British Fame (Owners)
v
MacGregor (Owners) [1943] AC 197 (HL) at 201, Lord Wright (from whom other
members of the House did not demur on this point) emphasised that the assessment
was directed
at the degree of fault and was different in kind from "a mere finding of
fact in the ordinary sense". His Lordship described
the question as one of
"proportion, of balance and relative emphasis", through weighing different
considerations. It was acknowledged
that the assessment of contribution involved
"an individual choice or discretion, as to which there may well be differences of
opinion
by different minds".
[36] In British Fame, the House of Lords also expressed views on the extent to
which it might be appropriate
for an appellate court to interfere with an assessment
made by a trial Judge on questions of contribution. Viscount Simon LC opined
"that
the cases must be very exceptional indeed in which an appellate court, while
accepting the findings of fact of the Court below
as to the fixing of blame,
nonetheless has sufficient reason to alter the allocation of blame made by the trial
Judge": at 198-199.
The remaining members of the House agreed with those
observations. As Lord Simon recognised, existence of a general rule does
not
exclude the possibility that such a case might exist.
[37] That approach to appellate intervention with assessments of contribution
was
confirmed in Steel Structures Ltd v Rangitikei County. In that case, the Court of
Appeal followed the principles espoused by
the Lord Chancellor in British Fame.
McCarthy P, for the Court, expressed the relevant test as follows, at 309-310:
... An
appellate court is always reluctant to interfere in the allocation of
what a trial court considers just and equitable. In
Hoani v Wallis [1956]
NZLR 395 this Court said that interference can be justified only if the
decision was one which no reasonable body of men could arrive
at on the
whole of the evidence. See also Cooke J in Hibberds Foundry v Hardy
[1953] NZLR 14. These were appeals from jury verdicts, though both
decisions were founded essentially on British Fame (Owners) v Macgregor
(Owners), The Macgregor [1943] AC 197; [1943] 1 All ER 33, an appeal
from a Judge in Admiralty. We are prepared to accept, however, that where
the apportionment is effected
by a Judge sitting without a jury, this Court
will feel less constrained in exercising its power of review, but nonetheless
the task of one seeking to upset an apportionment of a trial Judge, must
always be heavy for an appellate court is
seldom in as satisfactory a position
to arrive at a fair and equitable weighing of causative potency and
blameworthiness.
...
[38] Mr Shand referred me to a list of criteria for assessing contribution, taken
from a judgment of the Supreme Court of
British Columbia in Aberdeen v Township
of Langley, at [62] and [63]. Groves J (by reference to a decision of the Court of
Appeal
of Alberta in Heller v Martens (2002) 213 DLR (4th) 124 at para [34] and
Chiefetz, Apportionment of Fault in Tort (Aurora, Ont: Canada Law Book 1981) at
102-104) identified nine factors
that could be taken into account in determining
relative contributions:
a) The nature of the duty owed by the tortfeasor
to the injured person.
b) The number of acts of fault or negligence committed by a person at
fault.
c) The timing of the various negligent acts. For example, the party who
first commits a negligent act
will usually be more at fault than the
party whose negligence comes as a result of the initial fault.
d)
The nature of the conduct held to amount to fault. For example,
indifference to the results of the conduct may
be more blameworthy.
Similarly, a deliberate departure from safety rules may be more
blameworthy than
an imperfect reaction to a crisis.
e) The extent to which the conduct breaches statutory requirements. For
example, in a motor vehicle collision, the driver of the vehicle with
the right of way may be less blameworthy.
f) The gravity of the risk created.
g) The extent of the opportunity to avoid or prevent the accident
or the
damage.
h) Whether the conduct in question was deliberate, or unusual or
unexpected.
i) The knowledge one person had or should have had of the conduct of
another person at fault.
(ii) Approach to appellate review
[39] The Adjudicator's reasons for assessing relative contribution are sparse.
While he
explained the basis for his findings of negligence the assessments of
contributions tend to be conclusory in nature.
[40] Based
on the authorities, I consider that it was open to the Adjudicator to
assess contributions to individual defects and then to stand
back to consider the total
apportionment to be made. Having said that, it was important to exercise judgment
on questions of overall
fault and causative potency, to avoid the possibility of a
purely mathematical calculation.
[41] Although the reasoning is sparse,
the assessment remains one that ought not
to be disturbed on appeal, having regard to the tests set out in British Fame and Steel
Structures Ltd.
[42] It would be tinkering to gainsay the Adjudicator's evaluation of relative
contributions in respect of those
defects which were minor causes of the loss. So, I
am not prepared to interfere with the assessments made in respect of the penetrations
to the stucco cladding and the inadequate ground clearance at the base of the
cladding.
[43] Mr Shand's main complaints relate
to the assessment of contribution in
respect of the balustrades, parapets and window joinery.
[44] During the course of argument,
Mr Shand could not resist the proposition that
Mr Patel's contribution could be assessed as no lower than that of the Council. His
primary concern was that the contribution ordered from Mr Patel did not reflect the
roles undertaken by him as project manager,
compared with the errors made by the
builder and the plasterer.
[45] One point of difficulty, in determining whether there is
merit in that
submission, is that, as a result of the agreement reached between Mr Patel and Mr
Pearson, there is no room for me
to adjust the contribution to liability in respect of
Mr Pearson. If that inability were to create an injustice to the Council, Mr
Phillips or
Mr Parker, I would be reluctant to reduce Mr Patel's contribution on the particular
defect in issue.
(iii) Balustrades
[46] So far as the balustrades are concerned, Mr Shand submitted that the
apportionment was unreasonable because:
a)
Messrs Phillips and Parker were physically responsible for the
construction of the balustrades.
b)
Mr Pearson was the source of the design of the flat topped
balustrades.
c) The Council's expertise and statutory role in inspecting the building
work to assess compliance with the Building Code and
d) The Council's failure to identify any issues
with the balustrades when
it had the opportunity to do so through inspections.
[47] Mr Patel's responsibility
in respect of the balustrade defect was assessed at
40%. That compares unfavourably with that of Mr Phillips and Mr Parker, both
of
whom were assessed at 10%. The Council's contribution was assessed at 22.5%.
[48] I agree with the Adjudicator that Mr Patel,
as project manager, bore the
greatest responsibility in respect of his failure to ensure that building work was
undertaken properly.
While Mr Phillips and Mr Parker did the actual work to
construct the balustrades, Mr Patel has acknowledged that he had responsibility
for
giving directions to the contractors, explaining the work that he wanted done and
was involved in the overall supervision of
the construction of the house: see para
[27] of the Adjudicator's decision, set out at para [30] above.
[49] The Council's liability
in respect of the defective work carried out on the
balustrades was based on a finding that inadequate inspections were made. The
Council's contribution to loss, under this head, was assessed at 22.5% compared
with 40% for Mr Patel.
[50] I have no doubt that
a significantly greater contribution was required of Mr
Patel than the Council. His functions included co-ordination of work on site
and
supervision to ensure the work was carried out to an appropriate standard. That is
inherent both in the acknowledgements that
Mr Patel had involvement in the overall
control of the site and that he regularly gave directions to those working for him. Mr
Patel
also had more opportunity to inspect the work that the Council inspectors.
[51] The real issue is whether Mr Patel's relative
blameworthiness, in respect of
the balustrade defect, ought to be assessed at a lower level because both Mr Phillips
and Mr Parker's
level of responsibility should be increased.
[52] The responsibility of both Mr Phillips and Mr Parker was set below that of
Mr Pearson, whose design work contributed to the loss. If I were to increase the
contribution required of Mr Phillips and Mr Parker
on this aspect, the differential
assessed by the Adjudicator, between the responsibility of Mr Pearson (on the one
hand) and Messrs
Phillips and Parker (on the other) would be undermined, in the
absence of my ability to adjust Mr Pearson's contribution. Similarly,
if I were to
reduce Mr Patel's responsibility I would need to increase that of the Council. That
would prejudice the Council because
Mr Patel was on site at most times and had
more opportunities than the Council to inspect workmanship in issue.
[53] For those
reasons, I am not prepared to interfere with the assessment of
contributions in respect of the balustrade defect.
(iv)
Parapets
[54] Similar complaints are made in respect of the parapets. The defective work
arose from the failure to comply
with the Good Stucco Practice Guide and provisions
of the Building Code. Mr Phillips erected the parapets, while Mr Parker plastered
them.
[55] The Adjudicator assessed Mr Phillips and Mr Parker as each having a 10%
responsibility in respect of this defect.
The Council's contribution was assessed at
30% compared with Mr Patel's at 50%. Mr Pearson had no responsibility for this
defect.
[56] The percentages assessed for the respective contributions to this cause of loss
recognises that Mr Pearson bore no responsibility
for what occurred. Therefore, it
was necessary for the Adjudicator to assess questions of relative causal potency and
culpability
by reference to the roles played by Mr Patel, the Council, Mr Phillips and
Mr Parker.
[57] No conceptual difficulty arises
in adjusting the responsibilities of each of
those actors, as nothing impacts on the position of Mr Pearson.
[58] I consider that Mr Patel must bear the primary responsibility,
for the same
reasons that applied with regard to the balustrade defect. He was the person on site
who had responsibility for supervising
the work and had greater opportunities to
inspect it than did the Council inspectors. Further, it was open to Mr Patel to direct
the work to be done differently or to require remedial work to be undertaken by the
builder and plasterer.
[59] When those
factors are taken into account (remembering that the Council
does not challenge its assessed contribution) I cannot characterise
the Adjudicator's
apportionment of responsibility in respect of the parapet defects as unreasonable.
(v) Window joinery
[60] The most significant issue raised by Mr Shand concerned the contributions in
respect of the installation of windows and the
head flashings. The work was
completed with inadequate sill flashings and no jamb flashings, contrary to the Good
Stucco Practice
Guide and cl E2/AS1 of the Building Code.
[61] Both Mr Phillips and Mr Parker were involved in decisions about flashings to
the
windows and were physically responsible for the installation of the joinery,
flashings and sealant. The Council failed to inspect
adequately. Mr Patel's
responsibility was fixed at 64%, while the Council's and Mr Parker's contributions
were fixed at 8% and
28% respectively. No responsibility for this defect was
attributed to Mr Phillips.
[62] I am not prepared to interfere with the
assessment in respect of Mr Phillips,
even though I have some concerns about the assessment of 28% responsibility for
Mr Parker and
no responsibility for Mr Phillips. Fundamentally, the inadequate
workmanship in respect of the joinery, flashings and sealant was
caused by a failure
on the part of Mr Parker to do the work to the required standard and Mr Patel's
failure to check that the work
had been done adequately and, if necessary, give
instructions for remedial work to be undertaken. Having regard to the roles played
on site by Mr Patel and Mr Parker respectively, a significant differential is required
as between those two parties.
[63] On
the other hand, I consider that an 8% apportionment of responsibility for
the Council is far too low, given the Council's ability
to inspect and to require
remedial work to be undertaken. As to the ability to do that, I refer to my judgment
in Body Corporate
188529 v North Shore City Council [2008] 3 NZLR 479 (HC) at
para [449].
[64] In my view, Mr Patel's level of responsibility has been assessed too high in
comparison to that of the
Council and the Council's liability has been set too low.
Adjusting the relative contributions of Mr Patel and the Council, without
interfering
with the level of responsibility assessed for Mr Parker, I conclude that a proper
apportionment would have been 50%
for Mr Patel and 22% for the Council.
(vi) Assessment of overall contributions
[65] The only adjustment I have made
to the Adjudicator's assessments is to
reduce Mr Patel's level of responsibility in respect of the window joinery defects.
That has
had the effect of increasing the Council's level of responsibility.
[66] I eschew a mathematical approach and, instead, stand
back to see where the
justice of the case requires an overall contribution to be fixed, having due regard to
the level of responsibility
and blameworthiness of Mr Patel and the Council, in
relation to the three most significant causes of damage to the building.
[67]
Viewed in that context, Mr Patel's level of responsibility has generally been
assessed in the vicinity of 50%; the only lower
level is in relation to the balustrade
defect. On the other hand, the Council's level of responsibility has broadly equated
to about
25%, save in respect of the two relatively minor causes of damage arising
from penetrations and ground clearances.
[68] Therefore,
the overall assessments of responsibility at which the Adjudicator
arrived do not seem out of kilter. Mr Patel's responsibility was
assessed at 50% and
the Council's at 22%. While it might be argued that the Council's could have been
fixed around 25%, I do not
regard an adjustment of that type to be sufficient to
warrant interference with the first instance decision on the grounds that it
was
unreasonable.
Result
[69] The appeal is dismissed.
[70] Costs are awarded in favour of the Council against Mr Patel
on a 2B basis,
together with reasonable disbursements. Both costs and disbursements shall be fixed
by the Registrar.
[71] Before
the appeal hearing began, I stayed a bankruptcy notice against Mr
Patel pending determination of this appeal. On delivery of this
judgment, that stay is
lifted.
___________________________
P R Heath J
Delivered at 9.30am on 16 June 2009
Solicitors:
Grimshaw
& Co, PO Box 6646, Auckland
Heaney & Co, PO Box 105391, Auckland
Morgan Coakle, PO Box 114, Auckland
Corban Revell, PO Box 21-180,
Waitakere City
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URL: http://www.nzlii.org/nz/cases/NZHC/2009/711.html