Carrington v Easton (formerly Fowke) [2013] NZHC 2023 (9 August 2013)

Last Updated: 3 September 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-004-002616 [2013] NZHC 2023

BETWEEN BRETT MARTIN CARRINGTON & NICOLETTE JANE CARRINGTON Plaintiffs

AND DAVID JAMES EASTON (FORMERLY DAVID JAMES FOWKE)

First Defendant

AUCKLAND COUNCIL Second Defendant

DANDO CONTRACTORS LIMITED (in liquidation), (withdrawn)

Third Defendant

ROOF IMPROVEMENTS LIMITED (withdrawn)

Fourth Defendant

AND AUCKLAND COUNCIL First Third Party

DANDO CONTRACTORS LIMITED (in liquidation), (withdrawn)

Second Third Party

COLIN EWAN HOLMES Third Third Party

ROOF IMPROVEMENTS LIMITED (withdrawn)

Fourth Third Party

NICK LETICA BUILDING SUPPLIES LIMITED (discontinued)

Fifth Third Party

QBE INSURANCE (INTERNATIONAL) LIMITED (discontinued)

Sixth Third Party

GARETH JONES Seventh Third Party

CARRINGTON v EASTON [2013] NZHC 2023 [9 August 2013]

AARON RUDD Eighth Third Party

Hearing: 22-25 July 2013

Appearances: J A McKay for Plaintiffs and Auckland Council

First Defendant in Person

P McGrath for Third Third Party R Mark for Seventh Third Party Eighth Third Party in Person

Judgment: 9 August 2013

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 9 August 2013 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Chapman Tripp, Auckland

Metro Law, Auckland

Copy to: RP McGrath, Auckland

R Mark, Kerikeri

Defendants

Introduction

[1] This case is about allocating responsibility for defective building work at the Carringtons’ home, 26 Ellerton Road, Mount Eden, Auckland. The Carringtons sue David James Easton (also known as David James Fowke). They say he was the head contractor and is primarily liable for the defective workmanship.

[2] In turn Mr Easton has issued third party notices to and seeks contribution from the Auckland Council; Mr Holmes, an architectural draughtsman; and Messrs Jones and Rudd, both of whom are carpenters who worked with Mr Easton on the job. Auckland Council has a cross-claim against Mr Easton.

[3] Claims and cross-claims involving other parties have either been settled or withdrawn.

The Carringtons’ claim against Mr Easton

[4] The subject property is a 1920’s two-storey weatherboard home. The Carringtons have owned it for some time. In 2001 they decided to renovate it to make it a better home for their family. The first stage was to extend the front part of the house to include a garage, a master bedroom, an en suite and walk-in wardrobe, hallway and reconfigure two other bedrooms (the renovation work). They engaged Mr Holmes to obtain a building consent from the Auckland Council (Council) for the renovation work. Mr Holmes prepared and submitted plans and specifications to the Council. On 13 June 2001 the Council issued a building consent.

[5] Mr Easton also lived in Mt Eden and was recommended to the Carringtons by people who had used him. In the latter part of 2001 and early January 2002 Mr Easton submitted estimates to the Carringtons for the renovation work.

[6] The last estimate was for $149,359.50 for the stage one work. It included site works, carpentry, joinery, GIB shopping, drainlaying, painting, roofing, electrical, plumbing and coverings and tiling. Although no written contract was ever executed, the Carringtons engaged Mr Easton to carry out the renovation work and he started in February 2002. Mr Easton engaged Gareth Jones and Aaron Rudd as carpenters to

assist him with the carpentry work. They billed Mr Easton for the hours they worked on the property. Mr Easton then added a margin and billed the Carringtons for their work.

[7] A number of subcontractors were involved in the project, including a roofer and a joinery firm, Dando Contractors Limited (Dando). An issue arises between the Carringtons and Mr Easton as to the responsibility for the subcontractors particularly Dando.

[8] Mr Easton carried out the renovation work between February 2002 and August 2002. Although some work still remained incomplete in August, the Carringtons agreed to accept responsibility for the outstanding issues, including the exterior painting and Mr Easton left the site. He returned briefly to fit some flashings to the windows and doors in 2003.

[9] In June 2008 the Carringtons noticed water tide marks and staining to the interior finished joinery in the main bedroom and the fourth bedroom. On closer inspection the wood appeared damp. They were able to pierce the paint seal and expose rot. Following further inquiries the Carringtons wrote to Mr Easton on 6

August 2008 advising him of the water ingress and leakage problems. They told him there were a number of issues with his workmanship. Mr Easton inspected the property. He then wrote to the Carringtons denying liability. He said the cause of the problem was the Carringtons’ failure to maintain the building.

[10] The Carringtons sought a Code Compliance Certificate (CCC) from the Council. The Council carried out a final inspection of the building work but, rather than issuing a CCC, on 23 September 2008 it issued a notice to fix under the Building Act 2004. The notice identified numerous defects and issues with the building work, including that it had not been undertaken in accordance with the requirements of the building consent nor in accordance with the requirements of the Building Code and the Building Act.

[11] The Carringtons engaged Bougen Construction to address the issues raised in the notice to fix. Their initial estimate of $69,000 proved unrealistic as soon as the

remedial work was commenced. A revised estimate of $238,441 plus GST was presented. The Carringtons obtained a further quote from another builder for the remediation work but it was for an even higher figure.

[12] The property has now been remediated but at a total cost (including further direct expenses such as storage) of in excess of $546,000. The plaintiffs accept that there is a significant element of betterment in the remedial works carried out.

[13] The Carringtons took proceedings against Mr Easton. They later joined the Council, the roofer, Roof Improvements Ltd and the joiner, Dando Construction Ltd. In the course of these proceedings the Carringtons have settled with the Council (for

$190,000) and with the roofer and Dando (for $63,000 in total).

[14] After taking account of the betterment at $122,000, and giving credit for the recovery from the Council, the roofer and Dando, the net figure now claimed by the plaintiffs against Mr Easton is $171,517. In addition the plaintiffs claim general damages, interest and costs.

Mr Easton and the Council

[15] Mr Easton seeks to be indemnified by the Council for any liability he may have to the Carringtons. He pleads the Council breached the duty of care it owed to the Carringtons by failing to identify defects in the course of its inspections of the renovation work which led to further damage to the property between 2002 and September 2008 before it issued the notice to fix.

[16] At the outset of the hearing Mr McKay advised the Court that, following the Carrington’s settlement with the Council, he was instructed to appear for the Council for the purpose of dealing with Mr Easton’s cross-claim. The basic proposition advanced by the Council is that, having regard to the overall size of the claim there could be no suggestion that any right of contribution which Mr Easton may have against the Council could possibly be worth more than the $190,000 it had already paid, particularly taking into account that it had not issued a Code Compliance Certificate. While it has a cross-claim against Mr Easton the Council does not seek to recover any sum by way of contribution or costs from Mr Easton.

[17] Mr Easton took issue with the settlement between the Carringtons and the Council and submitted that Mr McKay and his firm had a conflict of interest in representing the Carringtons against him while also acting on behalf of the Council in relation to his claim against it (and the Council’s claim against him).

[18] As I indicated during the course of the hearing to Mr Easton, that is primarily a matter for counsel, Mr McKay, the Carringtons and the Council to be satisfied about. Mr McKay assured the Court that the Council and the Carringtons were fully aware of the position. He was satisfied there was no conflict of interest and that he was able to properly represent the interests of the Carringtons and, so far as it was necessary, to also appear for the Council to respond to Mr Easton’s cross-claim against it. I accept his assurance.

Mr Easton’s claim against Mr Holmes

[19] Mr Easton pleads that Mr Holmes owed the Carringtons a duty of care to ensure the plans and specifications included sufficient detail to enable the proper construction of the renovation work. He says that Mr Holmes breached that duty by failing to provide adequate details for a number of specific items of construction.

[20] Mr Holmes accepts he owed a duty to the Carringtons to exercise reasonable care in carrying out the work that he was engaged to do but denies any breach of that duty. In particular he denies any liability to Mr Easton.

Mr Easton’s claim against Mr Jones and Mr Rudd

[21] Mr Easton pleads that Mr Jones and Mr Rudd owed a duty to the Carringtons to exercise reasonable skill and care in undertaking their carpentry work, that they breached that duty and are responsible for the defects in the building work. Mr Easton seeks contribution and indemnity from them.

[22] Mr Jones and Mr Rudd deny owing a duty to the Carringtons and say they were both supervised by Mr Easton and carried out the building work in accordance with his instructions and directions.

Decision

The Carringtons’ claim against Mr Easton

[23] In Mr McKay’s submission the Carringtons’ claim is a “simple negligence” claim against Mr Easton as builder. It is well established that a builder is subject to a duty to use reasonable care to prevent damage to persons whom he should reasonably expect to be affected by his work.[1] There is a clear link where the work is carried out directly for the party affected pursuant to a building contract.

[24] The basis of the contract will inform the scope of the duty. That is relevant in the present case as Mr Easton denies any liability for the actions of subcontractors. At the time Mr Easton presented the Carringtons with the last estimate of 29 January

2002 he also presented a draft agreement for services between Easton Trust as contractor and the Carringtons as owners. The draft agreement provided that the contractor would organise and present quotations for subcontractors to the owners for approval before subcontract work could commence. Although the parties never executed that agreement Mr Easton commenced the renovation work during February 2002. The parties generally adopted the practice of Mr Easton obtaining quotes for the subcontract work and then referring them to the Carringtons.

[25] In carrying out the renovation work, Mr Easton was under a duty to ensure that the work complied with the Building Act 1991, the residential specification and plans prepared by Mr Holmes, and the consent. He was also under a duty to carry out the work with reasonable skill and care in compliance with good trade practice. Mr Easton effectively accepted the same in his pleadings and during the case.

[26] The residential specification prepared by Mr Holmes incorporated the following as contract documents:

1. Land information memorandum.

2. Project information memorandum.

3. The accompanying drawings.

_{4. This specification.}

5. Concrete work NZS 3109 (1980).

6. Block work NZS 3102.

7. Construction - NZS 3604

- ‘New Zealand Constructional Details’ by RJ Wilson

8. Finish - ‘Timber Framed Construction’ by RJ Wilson

9. Bracing Calculations - Sub floor, walls.

10. Engineering details and calculations – as required.

11. Producer statements – as required.

12. Survey plan showing contours.

It also provided detailed specifications for the work including carpentry.

[27] The evidence for the Carringtons’ claim against Mr Easton was given by Mr Carrington and Mr Lynch, an independent expert witness in the field of architecture. Mr Lynch identified a number of defects in the building work carried out in the course of the renovation work. In summary, (and the following is by no means an exhaustive list), the principal defects he identified were:

Structural and fixing defects

(a) The sub-floor to the south-eastern corner of bedroom three, which carried floor, wall and roof loads, was unsupported. It would have been obvious to the builder. The builder changed the proposed support structure.

(b) No vertical shrink control joints were fitted to the concrete retaining walls, which had cracked.

(c) Shrinkage control joints in the garage floor did not comply with

NZS3604:1999.

(d) There were structural defects in the north and west garage walls, in particular:

(i) the GIB braceline wall bearing bracing element to the garage west wall, which carries the support for the master bedroom and half of the balcony floor load; and

(ii) the use of non compliant fixings for the “superbrace” braced

wall to the garage.

Non-engineered and unapproved garage beam/post connections

[28] The builder changed the specific design solution for connecting the steel beams supporting the master bedroom floor and above, including the balcony and main house roof, without either obtaining engineer or Council approval, using two short coach screws fixed through the top plate into the timber stud end grain. Mr Lynch also noted the coach screw threaded into weak end grain timber.

Bedrooms

[29] The cantilevered bay window in the master bedroom was 14 mm out of level. The ceiling had also slumped. The architrave and sill junctions were opening up with the end window frames misaligned and window sashes bind. Decay was found in the framing.

[30] In bedroom four, the support structure below the bay window and lintel above the bay window were outside the scope of NZS3604:1999. They were installed without obtaining specific engineering design approval. Further, it appears a beam to support the roof and ceiling over bedroom four had rot.

Wall and floor framing

[31] The external wall framing was untreated pinus radiata. The specification required the framing to be boric treated timber. The untreated timber was vulnerable because of lack of weather tightness due to the other defects and was decaying in various places. It failed to meet the Building Code requirement for structural durability.

Garage opening in garage west wall, the ground floor level

[32] The finished floor level on the north and west sides to the garage did not comply with the Building Code. The code required a minimum floor to unpaved ground clearance of 225 mm. The unpaved ground clearances were only 50 mm and the damp proof course had been poorly applied or not installed at all in places.

General structural issues

[33] Mr Lynch criticised the following:

(a) inappropriate bottom plate fixing to concrete floor slab including the use of plain steel bolts;

(b) structurally defective lintels; (c) defective entry porch framing;

(d) defective framing to bedroom four, including the floor was not levelled within tolerances required by NZS3604:1999, defective existing framing, and plates and joints were not remedied.

Weatherboards

[34] Unapproved and unspecified weatherboards were installed. The specification required the weatherboards to be 200 x 25 mm radiata pine, multi-salt pressure treated (CCA), finger jointed and bevel-backed. The weatherboards installed were straight-backed (not bevel-backed) finger jointed pinus radiata with a width of

200 mm or more. Rather than CCA treated they were LOSP treated and had no weather grooves, contrary to good practice and the standards set by the Building Research Association of New Zealand.[2] They were insufficient and poorly lapped, being lapped between 11 mm and 23 mm short of requirements which prescribed a

_{32 mm minimum lap.}

[35] Weatherboard scribers were not fitted. The weatherboards were incorrectly fitted with a smooth shank nail-gun brad nail as opposed to a proper nail. The weatherboards were required to be replaced. In addition there was non-complying cladding to a garage.

The exterior joinery fabrication

[36] Mr Lynch identified a number of design defects with the exterior joinery which could be attributed to the manufacturer of the joinery, Dando Contractors Ltd. The windows were fabricated without sufficient tolerances contributing to jamb and sill joint defects and the transom and sash designs did not comply. The anti-capillary roofs were too narrow and were misaligned. There were also issues with non- compliant glazing rebates, insufficient mullion top-lights and top sash. The joinery surfaces were supplied without being primed before factory assembly.

[37] However, in Mr Lynch’s opinion there was also defective workmanship in the installation of the joinery. In particular, when the joinery was trimmed on site, cut edges and ends that were vulnerable to water ingress were not primed. There were no sill tray flashings installed, which was in contravention of the specification and long established good trade practice. There was also inaccurate mitre cutting which led to the rotting of the master bedroom bay window. Some of the sills were poorly cut and in places most of the joinery was poorly fixed to the supporting structural wall. The installer failed to fit sash restrictor stays.

Roofing and general

[38] Mr Lynch also identified workmanship issues in relation to the roofing, interior wall linings and unsupported drain.

Conclusion – defective building work

[39] The principal defects were structural issues surrounding the renovation work particularly in the bedrooms, the exterior joinery, windows and doors and weatherboards. It is not really in dispute that the renovation work or at least parts of it, was defective. Even Mr Easton conceded in his evidence:

I do take responsibility for some of the defects ... but in saying that, I believe the responsibility does not lie solely with myself.

[40] On the basis of Mr Lynch’s evidence, which was largely unchallenged by Mr Easton on the extent of the defects, I find that the building work which Mr Easton was responsible for was defective in the aspects identified by Mr Lynch. The building work failed to comply with the standards incorporated into the contract by the specifications, and also failed to comply in a number of respects with the specifications themselves, particularly in relation to carpentry work. As a consequence, it did not comply with the Code, nor with the requirements of the relevant Building Act.

[41] In his closing Mr Easton explained that he sought a reduction in the damages claimed against him on the basis that:

(a) the standards applied by Mr Lynch to the work were not the relevant standards at the time the work was carried out in 2002;

(b) the Carringtons had contributed significantly to the loss due to their lack of maintenance and care of the house over a six year period before notifying Mr Easton of the issues;

(c) the Carringtons had engaged Dando directly;

(d) the Carringtons failed to sign the contract presented and the building works were incomplete at the time that he ceased work on the job.

[42] In addition Mr Easton maintained his claims for contribution against the

Council, Mr Holmes and Mr Rudd and Mr Jones as carpenters.

[43] Mr Easton submitted that Mr Lynch applied 2009 and later standards to the work that he had carried out in 2002. He said that, for example, as a small builder in

2001 he did not even have a copy of NZS 3604 on site let alone the standards for timber joinery. He said he relied on the Council. Mr Lynch rejected that:

NZS 3604 has been in publication for a long time. There’s been a lot of supporting documentation on the reason for those connections to resist uplift wind loadings and it’s a well known fact in the building industry.

[44] Mr Lynch was prepared to accept that the Council now requires much more detail in design than it did in 2001 but that is a different issue to the point Mr Easton was seeking to make. Mr Lynch’s evidence of the building defects was on the basis of the standards that applied in 2001/2002. In answer to a question of clarification from the Court on that issue Mr Lynch said that:

... I try to be fair on these things. I understand, you know it’s a difference process to be on a building site and out in the wind, but if we take the example of the lintels which were too small for the spans, by virtue of having to replace those lintels we have to build them to the current standard, that’s not being unfair, that’s what’s required under law.

[45] On the maintenance issue, Mr Easton produced some photographs that were taken by an expert he had instructed. The photographs show cracking in the putty and a lack of paint or failure of paint to exterior joinery. The expert is now deceased, but it appears the photographs were taken in 2009 or 2010.

[46] Mr Lynch accepted there appeared to be a maintenance issue disclosed by the photographs in relation to the cracked putty in particular. However, he said that if the photos were taken in around 2009 or later, then by that point, the question in relation to the joinery was:

... was it worth painting it? And we were doing analysis of it and the joinery had such systemic failures in terms of fabrication at the transom and at the frame sill junction, that I could have never got it past council by keeping that same joinery in there.

[47] Mr Lynch considered that the joinery was so defective that, even if it had been fully maintained and painted the problems that were systemic to it arising from its design, initial fabrication and installation would still have created the issues that the parties had to deal with. Mr Lynch also concluded that the sill rot could not be attributed to the lack of painting. It was caused by the use of faulty timber and other failings in the fabrication and installation.

[48] Mr Easton opposes the Carringtons’ claim against him in relation to the

joinery on the basis that the Carringtons contracted directly with the joiner Dando for

the supply of the joinery. It is clear from Mr Lynch’s evidence that the joinery supplied by Dando was defective, both in design and fabrication. The issue is whether responsibility for Dando lies with Mr Easton or the Carringtons.

[49] Mr Carrington accepted that Mr Easton had supplied quotes from both Heritage Joinery and Bungalow and Villa for the joinery, but that he had then decided to seek a quote from Dando. Mr Carrington supplied a set of plans to Dando Joinery for that purpose. He then directly accepted their quote and paid them a deposit.

[50] I am satisfied from the evidence that the Carringtons chose Dando and contracted with that company directly. Mr Easton had no involvement with arranging Dando to supply the joinery. The Carringtons accepted the Dando quote because it was substantially less than the other two quotes. In choosing to accept the Dando quote and contract directly with Dando the Carringtons must accept responsibility for that decision and the defective joinery supplied by Dando.

[51] However, because of the settlements with other parties that finding does not practically advance Mr Easton’s position. The replacement joinery claimed as part of the Carringtons’ claim against Mr Easton is based on a quotation from Pakuranga Joinery of $46,643, which was included as part of the remedial work carried out by Bougen. As noted, the Carringtons have settled with Dando and the roofer for

$63,000. A credit for that amount has been given in relation to the Carringtons’

claim against Mr Easton.

[52] To the extent Bougen charged for the installation of the joinery, I note that Mr Lynch would still attribute some responsibility to Mr Easton for the building work in installation of the joinery. However, the short point is that even if all responsibility lay with Dando, the Carringtons’ claim against Mr Easton has already been reduced by significantly more than the cost of the replacement joinery. No further adjustment is necessary.

[53] The last issue Mr Easton raised was the failure of the Carringtons to sign the contract. Nothing turns on that. Even though the contract Mr Easton presented to

the Carringtons was not signed, the parties proceeded on the basis of his estimate. Mr Easton was the contractor carrying out the work on site. As such he owed a duty of care to the Carringtons. That duty required him to build the renovations in accordance with the residential specifications and plans submitted for the purposes of the building consent. Nor is the fact the Carringtons took no steps for six years relevant to their claim. The claim was within time. It is a matter of law which Building Act applied. The relevant standards applied by Mr Lynch were the standards of the time.

[54] Mr Easton did not lead any evidence to challenge the quantum sought by the plaintiffs. I find the plaintiff’s claim against Mr Easton proved. The only remaining issues are Mr Easton’s claims against the third parties.

Mr Easton’s claim against the Council

[55] Mr Easton’s position is that the Council was primarily liable for the defective work. He considers it should not have granted the building consent in the first place. He says it was also negligent during its inspections of the renovation work, particularly the pre-line inspection approving the windows and exterior joinery supplied by Dando.

[56] There are procedural difficulties with Mr Easton’s claim against the Council in relation to its decision to issue the consent, as opposed to the inspections. He faces a limitation defence. The first claim the Carringtons made against the Council was in the second amended statement of claim dated 30 April 2012. The building consent was issued on 13 June 2001, more than 10 years before that claim was made. The Carringtons are not able to pursue a claim against the Council arising out of the issue of the consent.

[57] Next, although Mr Easton’s third party claim against the Council was issued within time, it does not plead any breach of the duty in relation to the issue of the consent. Mr Easton alleged the Council owed a duty in issuing the building consent, but the particulars of breach pleaded are restricted to the defects in the building work identified in the then existing statement of claim issued by the Carringtons. There was no allegation of breach in relation to the issue of the consent itself.

[58] I turn to the inspection issue. On the evidence before the Court, particularly that of Mr Lynch, the Council was negligent in its inspection of the work. As Mr Lynch said in his report:

Overall the number of issues noted ... is such that I would have expected any reasonable Council inspector to have realised, fairly early on in the inspection process, that the quality of work being carried out by the builder was very poor and that he could not be regarded as competent. As a result, particularly careful and thorough inspections would be required ...

[59] I find that the Council failed in the duty of care it owed to the Carringtons in its inspection of Mr Easton’s work. The work was seriously defective and the Council should have picked that up. However, as Mr McKay submitted, at least the Council never granted a certificate of compliance for the work and instead, when asked to inspect the property in 2008 identified a number of failings and issued a notice to fix at that time.

[60] As Mr McKay also observed, a principal defect was the window and door joinery, but it does not appear that the Council was called to the site by Mr Easton to inspect the window and door joinery after it had been installed. Mr Easton accepted in cross-examination it was his responsibility to call the Council on site to undertake the pre-line inspection. He also accepted that he could not point to any record of the Council carrying out such a pre-line inspection. Mr Easton should have followed that up with the Council.

[61] In summary then, the Council owed a duty of care to the Carringtons which it breached by negligently failing to properly carry out its duty when inspecting the building work. In Body Corporate No 189855 v North Shore City Council,[3] this Court discussed the apportionment of responsibility for the plaintiff’s loss amongst the various defendants pursuant to s 17(1)(c) of the Law Reform Act 1936. After referring to the review in The Law of Torts in New Zealand the Court noted that the generally accepted allocation of responsibility between builder and Council was fixed at 80 per cent/20 per cent. In some cases the Council will have a lesser

responsibility. In only the rarest cases will it be more. In the present case, given that

_{the Council did not issue a compliance certificate, on my assessment, its}

responsibility would be in the region of 15 to 20 per cent. Even taking it at the highest, namely 20 per cent, the sum paid by the Council to the Carringtons of

$190,000 far exceeds the contribution the Council would be required to make towards the damages sustained by the Carringtons and for which Mr Easton was otherwise liable.

[62] The cost to the Carringtons of the remedial work totalled approximately

$546,000. Reducing that by the acknowledged betterment of $122,000 (which has not been challenged) the Carringtons’ claim for damages stands at $424,000. Twenty per cent of that is less than $85,000. On any view of it the $190,000 paid by the Council is more than double the contribution that it could be required to pay in this case towards the damages otherwise payable by Mr Easton. In terms of s 17(2) of the Law Reform Act 1936 the amount of contribution recoverable by Mr Easton from the Council is discretionary:

... such as may be found by the Court to be just and equitable having regard to the extent of [the Council’s] responsibility for the damage and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

[63] Given the amount paid by the Council it would not be just and equitable to require the Council to pay anything further to Mr Easton. The Council has paid more than its share of responsibility for the damage sustained by the Carringtons. Mr Easton has had the benefit of that. In the circumstances I decline to make any order for contribution by the Council to Mr Easton. Mr Easton’s claim against the Council for further contribution fails.

Mr Easton’s claim against Mr Holmes

[64] In his claim against Mr Holmes, Mr Easton alleges that the breach of duty was in failing to provide adequate details in the plans and specifications in relation to the following issues:

(i) window and door joinery;

(ii) roof details for wall or roof junctions, flashings, gutters and roof penetrations;

(iii) window and door junctions to external wall junctions or flashings;

(iv) the presence of or details for an overflow on the deck outside the master bedroom;

(v) a fall to the deck outside the master bedroom and a membrane to the deck;

(vi) how the external cladding was to be finished at external and internal corners and at external joinery junctions;

(vii) finishing details

(viii) drainage levels or specification;

(ix) deck and ground clearances under exterior cladding; and

(x) barrier timber cappings.

[65] However, as Mr Lynch confirmed, the practice at the time was for plans and specifications to incorporate standards by referring to them in the specifications. That is what Mr Holmes did. The standards were incorporated into the specifications. When those standards are incorporated into the plans and specifications and are read with them, Mr Holmes’ plans and specifications provided adequate details.

[66] Mr Easton complained that the plans required considerable referencing to NZ Standards and manufacturer’s specifications that were not available on site or provided to him. However, it was his responsibility to comply with the plans and specifications. If he did not have the specifications referred to it was his responsibility and obligation to obtain them. I note that in Body Corporate 188529 v

North Shore City Council [Sunset Terraces] the Court accepted that, despite faults in the plans and specifications, the builders would refer to known specifications.[4]

[67] During the course of the hearing in both his submissions and also in his cross-examination Mr Easton made the point that there were errors in the bracing calculations provided by Mr Holmes and that bracing element number eight was omitted from the plans. However, as noted, that was not pleaded. The pleaded claim is solely focused on the failure by Mr Holmes to include the adequate details referred to above. The pleadings do not raise any breach in relation to the preparation of the plans and specifications. Nor, as Mr McGrath also noted, was this point put to Mr Holmes in cross-examination. He submitted it was too late for Mr Easton to seek to amend his pleadings, not that Mr Easton formally sought to.

[68] There is force in Mr McGrath’s submission. To permit an amendment at this late stage could cause prejudice to Mr Holmes. The 10 year limitation period in the Building Act 2004 has clearly passed. Mr Holmes would not be able to seek contribution or indemnity from other parties in relation to the new allegations. Although Mr Easton did not formerly seek to amend his pleading, if he had, I would have declined to permit it at this late stage.

[69] Even if Mr Easton was granted leave to amend his claim, it is apparent from Mr Lynch’s evidence that, notwithstanding any omission there may have been in the plans, Mr Lynch would have expected the builder to have noticed them and to at least have raised the issue, particularly in relation to the bracing.

[70] Further, it does not appear that any design issues that there may have been with Mr Holmes’ plans were causative of any loss. As Mr McGrath submitted the bracing calculation design required a brace 1300 mm long. The builder only built

950 mm. Nor did the builder follow the design of the master bedroom bay window support structure in any event. Next, the builder modified the support for the bay

_{window in bedroom four without either engineer design or Council approval.}

[71] For his own reasons Mr Easton chose not to follow the plans on a number of occasions. Mr Easton apparently felt able to depart from the plans at his discretion. As he said in cross-examination when it was put to him that he had deviated from the plans: “... there’s a lot of different ways to build places”.

[72] Mr Easton also sought to make something of the statement in the plans and specifications that the weatherboards were to “match existing”. I consider the specification was clear as to what was required. The statement to “match existing” meant nothing more than the new weatherboards should match the old ones as a matter of style. The specifications as to what type of weatherboard to use were comprehensive.

[73] Mr Easton’s claim against Mr Holmes must fail.

Mr Easton’s claim against Mr Jones and Mr Rudd

[74] Mr Jones and Mr Rudd were both labour only contractors. They rendered accounts to Mr Easton for their time. Mr Easton then added a margin and charged their time to the Carringtons.

[75] Mr Easton says that to the extent the building work was defective, Mr Jones and Mr Rudd carried out one-third of the work so are responsible for one-third of the defects.

[76] Mr Easton’s submission that as Mr Rudd and Mr Jones did approximately one-third of the building work they should share responsibility with him is simplistic. It is necessary to identify whether they actually carried out the defective work. It is also necessary to determine whether they owed a duty of care to the Carringtons, before any issue of contribution can arise.

[77] For present purposes, I accept that both Mr Jones and Mr Rudd may have carried out some of the defective carpentry work. On Mr Jones’ evidence, he was involved in work in the bedrooms and replacing the weatherboards. Mr Rudd was also involved in replacing the weatherboards.

[78] The more difficult issue is whether Mr Jones and Mr Rudd owed the Carringtons a duty of care. In determining whether labour only contractors such as Mr Jones and Mr Rudd owed the Carringtons a duty of care, the Court will look to the assumption of responsibility, any special skill the contractor has, or may hold himself out as having, the need for promotion of standards and whether there are other means of protection. Assumption of responsibility for the task is not sufficient

of itself in cases of this nature.[5]

[79] Both Mr Jones and Mr Rudd said that this was the first time they had worked on a renovation of a weatherboard home. At all times they were effectively hammer hands working at the direction and under the supervision of Mr Easton. Mr Easton was in control of the site. He ordered and supplied the materials and equipment to them and directed their work.

[80] I accept the evidence of Mr Jones and Mr Rudd. They both relied on Mr Easton’s experience. Mr Easton was the person who had directly contracted with the Carringtons. It was his obligation to observe the relevant building codes, regulations and plans and specifications. That was a non-delegable duty.[6]

[81] I find that Mr Jones and Mr Rudd worked on site, at the direction of, and under the control of Mr Easton. As Mr Easton was in control of the site and the work carried out on it Mr Jones and Mr Rudd were required to act on Mr Easton’s directions. Neither Mr Jones nor Mr Rudd held themselves out as having any expertise or experience in relation to work on weatherboard houses. As Mr Jones said, in relation to the master bedroom, Mr Easton explained the details of the plans to them and supplied the brackets to do the job. In relation to bedroom four, Mr Easton instructed Mr Jones to use the steel beam in the roof as the load bearing member.

[82] I do not consider that Mr Jones owed the Carringtons a duty of care in this case, having regard to the fact he had not, in the circumstances, assumed any

_{responsibility to them beyond applying his labour at Mr Easton’s direction. He}

assumed no responsibility for compliance with the plans and specifications. Further, the Carringtons did not rely on Mr Jones. They looked to and relied on Mr Easton who they had contracted with. Mr Rudd is in the same position. I see no basis on which to make a distinction between Mr Jones and Mr Rudd.

[83] If I am wrong and Mr Jones and Mr Rudd could be said to owe the Carringtons a duty, so that the issue came down to the contribution by Mr Jones and Mr Rudd to the losses sustained by the Carringtons then, having regard to the practical control Mr Easton exerted over the site and their work, I consider that it would not be just to require Mr Jones and Mr Rudd to contribute to the loss. Mr Easton’s position of dominance and control over them was made quite clear by his directing their work, supplying materials and equipment, and by his on-charging their work for profit.

[84] Mr Easton’s claim for contribution against Mr Jones and Mr Rudd must fail.

Result/Judgment

[85] The Carringtons’ claim against Mr Easton succeeds. Mr Easton’s claim

against the Council, Mr Holmes, and Messrs Jones and Rudd fails.

[86] The Carringtons are to have judgment against Mr Easton in the sum of

$171,517. The Carringtons are also to have judgment against Mr Easton for the direct interest costs incurred as a result of having to fund the cost of remedial work. That interest, calculated in accordance with Mr Carrington’s evidence is $52,771.

[87] The Carringtons also claim general damages for stress and inconvenience. Such damages are recoverable in cases of this nature.[7] I fix such damages at

$25,000.

Costs

[88] The Carringtons are to have costs on these proceedings against Mr Easton calculated on a 2B basis.

[89] Mr Holmes and Mr Jones are to have costs against Mr Easton on a 2B basis together with disbursements as fixed by the Registrar.

[90] I make no allowance for costs to the Council.

_{[91] As Mr Rudd represented himself there will be no order for costs in his favour.}

Venning J

---

[1] Bowen v Paramount Builders [1977] 1 NZLR 394 (CA).

[2] Good Timber Cladding Practice (Building Research Association of New Zealand, 1997).

[3] Body Corporate No 189855 v North Shore City Council HC Auckland CIV-2005-404-5561, 25

July 2008 at [301].

[4] Body Corporate 188529 v North Shore City Council [2008] 3 NZLR 479 at [545]–[547].

[5] Rolls-Royce New Zealand Ltd v Carter Holt Harvey [2005] 1 NZLR 324, at [98]–[100] and

_{Simaan General Contracting Co v Pilkingtons Glass Ltd [1998] 1 All ER 791.}

[6] Morton v Douglas Homes [1984] 2 NZLR 548 at 592.

[7] O’Hagan v Body Corporate 189855 [Byron Avenue] [2010] NZCA 65, [2010] 3 NZLR 486.