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High Court of New Zealand Decisions |
Last Updated: 30 November 2012
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2012-425-228 [2012] NZHC 3079
UNDER The District Courts Act 1947
IN THE MATTER OF an appeal pursuant to s72 of that Act
BETWEEN SMEATON CONSTRUCTION LTD Appellant
AND GARRETT PASQUALE LIMITED First Respondent
AND GARRETT KARL PASQUALE Second Respondent
Hearing: 12 November 2012 (Heard at Dunedin)
Appearances: D Tobin for Appellant
G K Pasquale in Person (with K E Hanson as McKenzie Friend) for
Respondents
Judgment: 19 November 2012
RESERVED JUDGMENT OF FOGARTY J
Introduction
[1] Mr Michael Coburn, as a representative of the Coburn Family Trust, entered into an oral agreement with Mr John Smeaton, a director of Smeaton Construction Ltd to build a luxury home at Jack’s Point, Queenstown. With Mr Coburn’s agreement and involvement, Smeaton Construction retained the firm trading as Stone
Heritage on two different projects, stonework and the polishing of extensive concrete
SMEATON CONSTRUCTION LTD V GARRETT PASQUALE LIMITED & Anor HC INV CRI-2012-425-228 [19 November 2012]
floors. Stone Heritage is the trade name of Garrett Pasquale Limited (GPL). Mr Garrett Pasquale is the sole director and shareholder of GPL. This dispute involves problems with two concrete decks; the pool deck surrounding the swimming pool and the upper deck.
[2] Almost as soon as the concrete was poured for the deck surrounding the swimming pool crazed cracks began to appear. These cracks are also described as “plastic shrinkage cracking”. Eventually the decking around the pool was cut up and removed. It was replaced with a new deck.
[3] There were also problems with the upper deck. Those problems were of a lesser and different magnitude. Due to an error in the application of sealants, water got under the seal and mottled the surface. GPL made an attempt to fix the problem and were intending to do further work on it when they were prevented from doing any further work. The problems with the upper deck were remedied by the plaintiff.
[4] Smeaton Construction now sue for damages of $179,763.03. There are two notices of claim under the District Court Rules, one against GPL and the second against Mr Pasquale. Both seek the same sum.
[5] The claim against GPL is that it specified the concrete, failed to oversee the placing of it and:
The contractually required expectation has not been achieved by the Defendant as the concrete has exhibited extreme and unacceptable darkening of cracks generally located at reinforcement locations.
Essentially this pleading alleges that GPL promised the desired outcome, as a contractual obligation.
[6] The second part of the claim against GPL addresses the upper deck, as exhibiting an unacceptable mottled appearance after rain, pleading that attempts by GPL to rectify the problem failed and as a result of the failure the plaintiff was required to redo the concrete work.
The claim against Mr Pasquale pleads that he is the sole director and shareholder of the company and that all the dealings between the plaintiff and GPL were with him. The claim also pleads that he had full control of the concrete supply and placing and of the concrete formulation, and owed the plaintiff a duty of care to carry out his company’s obligations in a good and workmanlike manner as a specialist subcontractor. As to the reasons why he should be liable personally there is a brief reference: Negligence (Morton v
Douglas Homes Ltd[1] and Body Corporate 202254 v Taylor[2] and s 9 Fair
Trading Act 1986).
(The Fair Trading Act cause of action does not appear to have been pursued in the District Court and was not pursued in the High Court.) The same amount of damages is sought together with interest and costs.
[7] After a trial, the District Court Judge P R Kellar dismissed both claims and allowed disbursements and witness expenses but not costs, as the second defendant was unrepresented and also spoke for the first defendant.
A. First claim against GPL in contract
1. Did GPL have contractual responsibility for the specification of the additives for the concrete, supervision of placement, and then the finishing of the same on the swimming pool apron deck?
[8] Judge Kellar formulated and introduced the issue in this way:
[21] The key issue is whether it was part of the contract between Smeaton Construction and GPL that the first defendant would take control of, and be responsible for, the concrete mix itself. This is a vital issue because the plaintiff’s case is that additives in the concrete mix caused the concrete on the pool decks to crack. Mr Pasquale said that it was Mr Smeaton who asked him to go to the concrete supplier, Firth, and discuss the concrete mix which would be suitable for a polished concrete finish. Mr Pasquale said that he was more than obliging because he anticipated it may improve his chances of securing the contract to grind and seal the concrete decks.
[9] After narrating the dealings between GPL, Smeaton Construction and Firth Concrete, the Judge moved on to consider GPL’s argument that the company was not liable because neither GPL nor Mr Pasquale could be regarded as the “designer” of the concrete or the authorised representative of the owner for the purposes of the application of New Zealand Standard 3104 (setting out responsibility for concrete mix designs). That Standard was argued to be implied by law into the relationship between the plaintiff and GPL by reason of s 40(1) Building Act 2004 which provides:
40 Buildings not to be constructed, altered, demolished, or removed without consent
(1) A person must not carry out any building work except in accordance with a building consent.
...
And s 397(a) which provides.
Despite any enactment or rule of law, in every contract to which this section applies, the following warranties about building work to be carried out under the contract are implied and are taken to form part of the contract:
(a) that the building work will be carried out—
(i) in a proper and competent manner; and
(ii) in accordance with the plans and specifications set out in the contract; and
(iii) in accordance with the relevant building consent:
...
[10] It is accepted that by virtue of s 397, NZS 3104 is part of the building contract between the trustees and Smeaton Construction. It is another question who is the designer of the concrete works for the purpose of the application of NZS 3104. Judge Kellar found:
[43] The plaintiff’s stance is that it is not unusual for concrete suppliers – either Firth or Allied – to receive instructions in relation to concrete mixes from non-engineers. The plaintiff submits that it is not necessary for the “engineer” to have some technical qualification and that in most building
contracts the person holding the role of engineer is not necessarily an expert on concrete. There was no evidence as to the latter submission. In relation to the former, NZS 3104 defines “designer” as “the professional (emphasis added) engineer (or architect), his/her deputy, or authorised representative, nominated on behalf of the owner...” It is clear from that definition the standard requires the designer to be a “professional” engineer or architect or the representative of either of those people. The use of the word “professional” connotes the holding of suitable qualifications and not merely the person who assumes the role of engineer.
[44] The evidence shows that the defendants are neither a professional engineer nor architect and that neither of them were nominated by the engineer or architect on behalf of the owner as their deputy or authorised representative. Hence I am satisfied that neither GPL nor Mr Pasquale fell within the definition of “designer” [in NZS 3104] in respect of the concrete mix.
[11] On one interpretation of this judgment, that was the reason he found no liability. However, he went on:
[45] NZS 3104 rule 2.10.2.1 provides that for all special concrete mixes (of which this was one) the purchaser or designer shall specify the properties required. As held above, Smeaton Construction is the purchaser being the person or organisation placing concrete orders. There is nothing in fact to preclude the purchaser delegating the task of specifying the properties required of the special mix to another person not falling within the definition of designer. The key question in this case is not so much whether the defendants fall within the definition of “designer” but whether it was a term of the contract between Smeaton Construction and GPL that the defendants would specify the properties required of the special concrete mix.
[46] I am satisfied that the defendants did not specify the special concrete mix. There is no doubt that Mr Pasquale discussed with Mr Casey the addition of a water-proofer, super-plasticiser and fibres to the concrete mix. However, Firth chose not to use the Sika products Mr Pasquale suggested for the very good reason that the products would react with one another. Little perhaps turns on it but the aggregate size Mr Pasquale recommended was not used.
[47] The more significant point is that the letter from Firth of 20 April
2009 to Mr Smeaton sets out a range of options and product brands that could be used for the concrete and suggests there were alternative options.
The letter also asks Mr Smeaton for quantities and dates and required a
decision to be made on the strength of the concrete, the brand of water- proofer and the slump of the concrete. The letter was sent some six months prior to the poolside deck being placed. Either Mr Smeaton must have communicated with Firth in relation to the matters outlined in the letter or Firth took it upon itself to finalise the mix design. Either way, the defendants cannot be regarded as being responsible for specifying the mix of the concrete. The role of the defendants was confined to asking Firth to include fibres, a water-proofer and super-plasticiser in the concrete mix. The choice of the products to be used and the quantities in which they were added to the mix was left to others.
[12] The parties maintained their positions on appeal.
[13] Mr Tobin for the appellant described the examination of NZS 3104 as a distraction. I agree. There is a regulatory framework around building construction. All building construction in New Zealand of a significant character requires building consent and the construction must thereafter conform to the relevant regulatory documents. That in turn can impose implied terms in contracts by reason of s 397.
[14] The extent that obligations are imposed on individuals in this regulatory framework depends on their role, and the roles of others. There is always no doubt that the applicant for the consent and the lead professionals engaged, such as the supervising architect and supervising engineer, assume responsibilities. It is another question as to the extent that these implied terms extend to other subordinate persons. It is possible that Judge Kellar construed the definition of “designer” too narrowly.
[15] The starting point of any analysis of contractual responsibility needs to be the traditional one: an examination of the formation of the contract. Here, it was informal. GPL is wholly owned by Mr Garrett Pasquale who is its sole director. He had a meeting with Mr Coburn and Mr Smeaton for the appellant at the Jack’s Point Clubhouse in September 2008. The subject of the meeting was Mr Coburn’s project to build his residence. The three men met at the Jack’s Point Clubhouse, as it had a large concrete deck which had been polished. Mr Coburn wanted decks of high quality on his new residence. Mr Pasquale had ground and polished the deck at the Jack’s Point Clubhouse. Judge Kellar found:
[11] ... It seems the purpose of the meeting was to discuss the standard to which the concrete decks would be finished at the Coburn residence.
[16] That was part of the purpose of the meeting. The appellant’s argument is also that at that meeting Mr Pasquale took responsibility for more than grinding and polishing the concrete decks for the upcoming Coburn residence. The contention is that he also took responsibility for the mix or formula for the concrete, its placing, and then later its grinding and polishing, indeed for “the contractually required expectation” (of the finished surface) – see [5] above.
[17] Mr Pasquale agrees that he did discuss the formula. He says he recommended the use of Allied Concrete, but was told that Firth would be engaged, and later in April 2009 did talk to Firth about the mix. But he saw that discussion as informal co-operation which would help him get the job of polishing the surfaces. He did not see the meeting of September 2008 as securing for him the job.
[18] Mr Pasquale contends the contract was entered into in August 2009. There is no written record of the September 2008 meeting. There is no written record of the contract at all. The parties agree, however, that there was a contract and that it was between the appellant and GPL, not with Mr Pasquale. But no one appears to be able to identify a date upon which it could be confidently said there was a contract.
[19] This is an oral contract. The parole evidence rule does not apply. It is a feature of the argument in this case, both at first instance and on appeal, that both parties appeal to subsequent conduct in order to corroborate their respective positions as to what obligations GPL agreed to as a matter of contract with Smeaton Construction.
[20] It is inevitable in this informal context that the Court has to have regard to the subsequent conduct of the parties, in order to formulate a reasoned judgment on the probabilities as to what they promised each other.[3] The evidence reveals different expectations on the part of Mr Smeaton and Mr Pasquale.
[21] On 20 April 2009, Mr Smeaton received a letter from Mr Casey of Firth, which starts by setting out the mix:
25 – 30 Mpa Concrete, (No Entrained Air) round 13 mm natural stone
Super (for low slump workability)
Xypex or similar (Kryton) Waterproofer
Micro fibers
80-100 slump on site.
The letter goes on to record:
John,
This is the mix Garrett and myself worked out for the suspend floor he is going to be working on. We are working on a price for this as some of the components have a cheaper alternative will keep you updated.
Have you any idea on quantities and date this is to be placed as I have to procure some of these items.
Regards
Ray Casey
[22] There is an exchange between Mr Casey in his cross-examination by Mr
Pasquale:
Q. When I met with you on site, at your office, and discussed the possible additives for the ground and sealed contract at the Coburn project, I asked if you had Sika water proofer and Sika superplasticizer and you referred me to the products used by Firth, which is Grace superplasticizer and Xypex water proofer, is that correct?
A. Yes, it is.
Q. I have been told that there are many different Grace superplasticizer and Xypex water proofers, is that correct?
A. Yes, it is.
Q. So which ones were actually used?
A. ADVA 142 which is a high strength water reducer and I’m not aware off the top of my head what the Xypex product is. I believe it was, it was specified in one of the briefs I have read.
Q. Who told you to use these?
A. This – it’s what we normally use.
Q. How much superplasticizer did you put in the mix? A. I believe it was about two litres, two litres a metre. Q. How much of the water proofer did you put in?
A. The water proofer is dosed at between .8 of a percent to 1% of the total cement content of the si– of the concrete mix.
Q. So of these ingredients, I didn’t give you any specific detail on the quantities did I?
A. No, these were used at manufacturer’s specifications.
[23] At the very least, this and other evidence shows a shared responsibility between Firth and Mr Pasquale as to the additives to put into the mix. What was
proposed in the letter of 20 April was carried out, except that the exposed aggregate was 19 mm rather than 13 mm. Mr Pasquale had suggested using Allied Concrete. Smeaton used Firth. He did recommend a super plasticiser, a water proofer and microfibers. But the products he recommended to Firth were not used. Firth used different brands. The quantities were according to manufacturer’s specifications, a decision made by Firth. Mr Casey reported to Mr Smeaton, not to Mr Pasquale. (There was evidence it is standard practice for a concrete supplier when making up a special mix to report the formula to the customer before it is made up.)
[24] The narratives of these facts confound the proposition that as between the builder, Smeaton Construction, the concrete supplier, Firth, and GPL, that GPL took responsibility for the formula. Rather, it was a collaborative and very informal exercise. It raises the question, did the parties intend this informal collaboration to create and allocate legally binding responsibilities between them?
[25] The expert evidence was that one of the reasons for the crazed cracking of the concrete when laid was due to its “low bleeding” quality. When concrete is laid it is planed to bring to the surface sand and water to enable it to be finished with a smooth surface. Usually as the surface dries out water in the concrete will rise and prevent the surface drying out and cracking. One of the consequences of adding super plasticiser is to lower this bleeding quality. Mr Walker, the expert called by GPL, and favoured by Judge Kellar, said that when there is a special mix with a super plasticiser in it, it becomes more important to manage the new concrete to keep it damp to avoid cracking. He did not say that the mix was the cause of the crazing. He said it was a contributing factor. His evidence was:
Furthermore, regardless of who is responsible for the mix design, it is important to note that this was a significant contributor to the cracking, not the direct cause. The characteristics of the mix design meant an increased risk of plastic shrinkage cracking due to low bleed, but didn’t cause it. This known risk could, and should, have been managed. In my original statement I outlined standard techniques such as applying anti-evaporative sprays that can help reduce plastic shrinkage cracking.
[26] It was the case for Smeaton Construction that Mr Pasquale should have been present at the placing of the concrete. Mr Pasquale disputed this, saying never in his history had he ever been present at the placing of concrete. That was not one of his
skills. Smeaton Construction was employing an expert placer for concrete placement. He was Mr Rumler.
[27] Mr Rumler’s evidence was that he was engaged on the project and was contracted for the entire job. Mr Pasquale denied that he had been asked to be present at the placing. However, there is no doubt that Mr Smeaton had endeavoured to get in touch with Mr Pasquale before the placement and been informed by his family that Mr Pasquale had arranged to take his father away hunting for his 60th birthday and would not be available. Smeaton Construction went ahead with the pour, knowing that Mr Pasquale would not be present. It was supervised by Mr Rumler.
[28] Because of his approach to this issue, as set out above, Judge Kellar did not focus, as I am endeavouring to do, on making findings of fact as to what was agreed at the time of the formation of the contract as distinct from what happened later.
[29] On the probabilities, I find that there were different expectations on the part of Mr Smeaton and Mr Pasquale. The two men respected each other and were co- operative. However, it is plain that Smeaton Construction never contracted the responsibility for the formula for the mix and its placing to GPL. It stayed with its preferred contract supplier, and that contract supplier reported the mix to Smeaton Construction, not to GPL. Rather, Smeaton Construction consulted with GPL or Mr Pascale personally. I find that there is no intention between Smeaton Construction and GPL to have a legal relationship in contract whereby GPL took responsibility for the formula for the special mix of concrete and its placing.
[30] It follows that GPL was never put in a position where it assumed the responsibilities of designer of the concrete for the purposes of the Building Act and NZS 3104. Those specifications were prepared by a firm of engineers, and were the joint responsibility of that firm and the builder, Smeaton Construction. I would add there is no suggestion there was anything wrong with the specifications.
[31] There is no contractual liability by GPL for the crazed cracking that occurred. There is no liability in contract by GPL for the defective construction of the pool deck.
2. Is GPL liable in contract for the remedial costs incurred by Smeaton
Construction finishing the upper deck?
[32] It was always common ground that GPL and Smeaton Construction had a contract for the grinding and polishing of both decks.
[33] The events on the upper deck can be divided into three steps.
(i) GPL applied a penetrating sealer to the deck. Due to pressure of work/weather, it matters not which, GPL applied a “topical sealant” prematurely after applying the penetration sealant. Rainwater got in under the sealant and lifted the sealant.
(ii) To remedy this mistake, GPL ground off the sealant and then applied two coats of sealant, thinking this would be enough.
It was not. GPL wanted to go back to apply a third level of sealant. The timing of that application was complicated by the cutting of the slab, required to allow for expansion. GPL never got the opportunity of applying the third step because this delay coincided with a loss of confidence in GPL by Smeaton Construction by reason of the troubles with the pool deck.
(iii) The third step of remediation was undertaken by Smeaton Construction. It matters not whether it was done by Smeaton Construction or by a subcontractor. The important fact is that it was not done by GPL. Smeaton Construction is suing GPL for about
$25,000 for the cost of this remediation.
[34] Judge Kellar did not find GPL liable for this remediation/completion of the work by Smeaton Construction. He reasoned:
[85] Given Mr Smeaton’s perception of Mr Pasquale’s responsibility for the problems with the poolside deck, it is perhaps hardly surprising that he was unprepared to give the first defendant endless opportunities to fix the problems on the upper decks.
[86] The first defendant accepts that it had an obligation to ensure the sealer system performed. GPL accepts that on the upper decks the first sealer system delaminated due to application error. It seems common ground that the topical sealer was applied too soon after Aquron 1000 was applied.
[87] GPL arranged for Smeaton Construction to remove the balustrades to enable grinding machinery on site and for GPL staff to lightly grind off the delaminated sealant. The grinding was completed and two additional coats of topical sealer were applied. Mr Matheson confirmed that there was no need to reapply Aquron 1000. That product is a penetrating product which had already gone into the concrete. The defendants’ position is that it should have been allowed the opportunity to apply another coat of the topical surface sealer. Mr Pasquale was aware that additional coats of the topical sealer were required and advised Mr Smeaton, Mr Covey and Mr Coburn of this. Indeed, that was set out explicitly in an email dated 28 April
2010 in which Mr Pasquale advised that a third sealing coat was required. He repeated this advice in emails dated 7 and 18 May 2010. Notwithstanding Mr Smeaton’s experience with the poolside deck, it would have been reasonable for the plaintiff to permit the first defendant to have the opportunity to apply a further coat of topical surface sealant to the upper decks. Instead, Smeaton Construction contracted another party to regrind and seal all of the deck areas without any involvement of the defendants.
[88] It follows that the defendants do not have any liability to the plaintiff in respect of the upper decks.
[35] Where a party to a contract breaches a term, the other party to whom the obligation is owed has a duty to mitigate the loss. If GPL had breached the contract then under normal principles the employer, Smeaton Construction, was not obliged to continue with GPL but could mitigate the breach by taking action at its expense, suing GPL in default for the cost.
[36] The critical question is whether or not GPL was in breach of contract, by reason of prematurely applying the first layer of topical sealer too soon after Aquron
1000 was applied.
[37] Competent tradesmen make mistakes. Making mistakes is not normally described as a breach of contract. Normally, tradesmen get on and rectify the mistake at their own cost. The building industry would collapse if every time a tradesman made a mistake the employer brought in another tradesman to fix it.
[38] To be sure, the employer is not obliged to give a tradesman endless opportunity to fix problems, and if it becomes apparent that the tradesman cannot fix a problem, then the employer is entitled to employ another tradesman to do it. On the probabilities, GPL would have in fact had the opportunity to apply a further coat of topical sealant and otherwise discharge their obligation to ensure the sealer system performed but for the breakdown in the parties’ relationship over the poolside deck.
[39] For these reasons, I think that Judge Kellar was right to say that Smeaton Construction should have permitted GPL to complete their contract obligations rather than remove them from the job. Having done so, it follows that they cannot claim the extra costs that they took on as a consequence of banning GPL from the site. This claim in contract also fails.
B. Personal liability in negligence of Garrett Pasquale?
[40] This issue is confined to the pool deck slab. To establish tort liability against
Mr Pasquale, the appellant has to establish three elements: (i) A duty of care.
(ii) Negligent breach of duty.
(iii) Damage consequential upon the negligence.
[41] Judge Kellar did not separate out the tort action from the contract action in his analysis. I am referring to [43]–[47] of his judgment set out above. One way of interpreting those reasons is that it essentially finds that there is no causative link as:
Either Mr Smeaton must have communicated with Firth in relation to the matters outlined in the letter or Firth took it upon itself to finalise the mix design. Either way, the defendants cannot be regarded as responsible for specifying the mix of the concrete.
[42] The problem is that Mr Walker’s opinion was that the mix was a continuing cause of the loss. The fact of the mix warranted additional care to be taken in the curing of the concrete. There is an argument that once one engages in designing a mix, one should know that the consequences are that it will be “low bleed” and so require particular care in the placing and curing.
[43] Mr Rumler, the placer, knew it was 80 slump, (see [21]), but otherwise did not know the mix. On the day there appeared to be no awareness on the part of the Smeaton Construction team that special care needed to be taken. The weather was fine and the day was regarded as good for pouring. The first anti-cracking spray was not applied until the following day. Yet it would appear there were signs at the time it was being laid that it was significantly low bleed and showing indications of cracking or crazing. Had they been more alert to the problem, in Mr Walker’s opinion they could have managed it. See [25] above.
[44] There are always difficulties identifying the duty of care on the part of a sole shareholder and director of a limited liability company. In addition to Morton v Douglas Homes Ltd and Body Corporate 202254 v Taylor, see also Trevor Ivory Ltd v Anderson[4] and Williams v Natural Life Health Foods Ltd.[5]
[45] Before examining the question of whether or not a duty of care should attach to Mr Pasquale personally, it is practical to examine what would his duty of care be had he owed it and whether or not he was negligent. In this case the two go hand-in- hand. Essentially, Judge Kellar’s reasoning can be reinterpreted as finding that it was Smeaton Construction and/or Firth who finalised the mix design. He found as a matter of fact that Mr Pasquale could not be regarded as being responsible for specifying the mix of concrete. I have already set out above the manner of his advice and how it was received by Smeaton Construction (as to which concrete supplier, Mr Pasquale had always used Allied Concrete and Sika products) and how it was implemented.
[46] Judge Kellar found:
The role of the defendants was confined to asking Firth to include fibres, a water-proofer and super-plasticiser in the concrete mix. The choice of the products to be used and the quantities in which they were added to the mix was left to others.
[47] Having heard detailed argument, (very well prepared and presented), I am satisfied that those two findings of fact should not be disturbed.
[48] The main complaint by Smeaton Construction was that Mr Pasquale did not attend the placing of the concrete, accompanied by the pleaded contention that GPL was responsible for the finished product. There is no clear evidence that Mr Pasquale was ever engaged to take responsibility for the quality of the placement. There was no evidence at all that he was engaged to supervise the curing of the concrete. His advice as to the mix was taken and partly acted on. Smeaton Construction proceeded with Mr Rumler, its normal concrete placer, knowing Mr Pasquale was not available. Based on Mr Rumler’s evidence, it is likely that had Mr Pasquale been available, Mr Rumler would have been there as well. There can be no suggestion, nor was there, that Mr Pasquale’s advice, such as it was, was negligent. I say that, keeping in mind that after this experience on the pool deck, Smeaton Construction apparently (advice from counsel) did not repeat the formula for the upper deck.
[49] There is no suggestion that Smeaton Construction needed any education on the demands imposed by low bleed concrete. The persons on the site were very surprised by the concrete pour on the pool deck. From the start it was hard to work. It showed signs of drying out immediately. These factors were recognised at the time.
[50] I find that there was no negligence in the conduct of Mr Pasquale, nor was there any negligence in his absence from the site on the placing of the concrete and subsequent curing. Indeed, no one ever suggested that he was engaged to supervise the curing of the concrete.
[51] In the absence of proven negligence there is no need to engage in the difficult task of whether or not he owed a personal duty of care to Smeaton Construction. The causes of action and negligence in respect of the pool deck fails.
[52] There is no basis for a separate duty of care in respect of the upper deck. A completely different mix was used. There was no reliance on his advice in that regard when the concrete was sourced and placed for the upper deck. As I have found, the problems with the upper deck were one of those tradesman errors to be expected in the normal run of things. The contract was with GPL not with Mr
Pasquale. There is no context of Mr Pasquale giving particular advice as to the upper deck. His company was employed on the task of grinding and polishing. This is a standard routine task in which the relationship was understood between the parties as being a contract.
[53] The appeal is dismissed. Costs are reserved.
[54] Although GPL and Mr Pasquale were not represented in Court, I have been informed by Mr Pasquale that legal advice was taken and costs incurred. Whether or not they can be recovered or recognised in an order for costs is quite another question. At the hearing, I refused to look at correspondence on that subject between the parties, as at least part of it appeared to be without prejudice. I am not going to look at the material at this stage as to do so would be without the benefit of seeing a reply from Smeaton Construction. If the parties cannot resolve the question of costs, they should each file written submissions of no more than five pages, after exchanging drafts of the submissions between themselves. If there are any difficulties in those arrangements, leave is reserved to apply for a telephone conference with me to set up a timetable.
Solicitors:
[1] Morton v Douglas Homes Ltd [1984] 2 NZLR 548 (HC).
[2] Body Corporate 202254 v Taylor [2009] 2 NZLR 17 (CA).
[3] Gibbons Holdings Ltd v Wholesale Distributors Ltd [2008] 1 NZLR 277.
[4] Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 (CA).
[5] Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 (HL).
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