Other general NZ decisions

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2016

COMMERCE COMMISSION v THOMPSON [2016] NZDC 11109 17 June 2016 

Misrepresentation - Builders Guarantee - taking fee and not making application

JARDBORANIR HF T/A ICELAND DRILLING v SUMMIT HYDRAULIC SOLUTIONS [2016] NZHC 490 22 March 2016

contract - limitation of liability - exclusion clause

Claim for loss incurred by the defendant performing substandard work. Defendant relied on terms and conditions of trade limiting its liability. The case illustrates the importance of reading a contract before signing it. The claimant was bound by the terms and conditions and the defendant's liability was limited by those terms.


2014

ROADING & ASPHALT LTD v SOUTH WAIKATO DISTRICT COUNCIL [2014] NZSC 18 10 March 2014

Application for leave to appeal - invitation to tender - loss of profit - tender process - preliminary contract - measure of damages
Leave to appeal denied.


2013

SOUTH WAIKATO DISTRICT COUNCIL v ROADING & ASPHALT LTD [2013] NZCA 566 19 November 2013

appeal - Tender process – preliminary contract creation – implied duty of treatment of tenderers – Fair Trading Act 1986 – Local Government Act 2002

Issue arose as there was a disconnect between the lowest price offered by a tenderer and the net economic benefit flowing to the Council, as a result of acceptance of a particular tender. Court of Appeal found that the Council did reserve itself the right to accept a tender other than at the lowest price offered. Appeal allowed.


2012

SMEATON CONSTRUCTION LTD V GARRETT PASQUALE LTD [2012] NZHC 3079 19 November 2012

appeal for damages – oral agreement – contractual responsibility – contractual remedial costs liability – sole director and shareholder personal liability - mitigation

H&H CONTRACTORS LIMITED v LEIGHTON CONTRACTORS PTY LIMITED [2012] NZHC 2502 19 November 2012

time bar provisions - breach of contract - account of profits claim - discovery - Fair Trading Act

Held that he time bar was enforceable, the claims were made out of time and the plaintiff's claims in contract were struck out. The Fair Trading Act claim would survive. In terms of discovery, some further disclosure of financial documents ordered in order to allow quantification of loss.

GHP PILING LIMITED v LEIGHTON CONTRACTORS PTY LIMITED [2012] NZHC 1695 13 July 2012

tender process – preliminary contract creation – Offer and acceptance – Damages calculation

In viewing the evidence as a whole and objectively, Asher J held that no concluded agreement could be discerned. No corresponding offer and acceptance could be discerned. The parties' actions did not indicate that they intended to be bound. The exchange as it was left relevant matters unresolved and unclear. Asher J concluded that GHP had failed to prove that any preliminary contract was formed. 

ROADING & ASPHALT LIMITED V SOUTH WAIKATO DISTRICT COUNCIL [2012] NZHC 1284 8 June 2012

tender process – preliminary contract creation – implied duty of treatment of tenderers – Fair Trading Act 1986 – Local Government Act 2002

Held the Council departed from its terms of tender and therefore was answerable to the plaintiff for breach of the express terms of their preliminary contract. Breach of an implied term to treat all tenderers fairly and equally. Appealed. See [2013] NZCA 566.


2011

CHEN v ZHONG HC AK CIV-2010-404-001995 14 November 2011

application for damages for breach of contract – oral agreement – striking out of defence – contract parties – sham – variations – assumption of responsibility – personal liability


2010

COMMERCE COMMISSION v DAY CRI-2010-009-004417 1 September 2010

Master Build Guarantee - misrepresentation - no guarantee in existence - sentencing


2005

EVEREST v ROBIN SCHWASS CONSTRUCTION LIMITED CIV-2005-485-849 30 November 2005

costs - Calderbank offer - opposed interlocutory application - summary judgment

In the circumstances, the Judge concluded that it was appropriate for costs to be awarded presently against the second defendant (as opposed to following full trial) on the basis the costs incurred by the plaintiffs in opposing the summary judgment application should not have been necessary. An appropriate case for increased costs approaching solicitor and client costs.


2004

CARTER v THE AUCKLAND CITY COUNCIL CIV 2004-404-2192 14 October 2004

summary judgment - negligence - building defects - duty of care - personal liability - corporate veil - assumption of liability - Trevor Ivory Ltd v Anderson

An enquiry into whether personal liability has been assumed requires all the circumstances to be looked at. Summary judgment application failed as the application relied upon assertions that the applicant was not a developer or a project manager but that development and building work was carried out by incorporated entities and it would be a matter for trial on the basis of contested facts that the applicant's actual building work did not cause loss and that his control over the incorporated entities also did not cause loss.

ROLLS-ROYCE NEW ZEALAND LTD v CARTER HOLT HARVEY LTD [2004] NZCA 97 23 June 2004

negligence claim against subcontractor - appeal against refusal to strike out negligence claim - basis for appeal that claim is in effect that the appellant breached a duty to perform its contractual obligations with a third party - duty of care - limitation of liability contractual clause

Carter Holt entered into a contract with ECNZ (now Genesis Energy) for them to construct a cogeneration plant at their Kinleith paper mill that would be fueled by waste byproduct from the mill, with the contract having a non liability clause. ECNZ in turn subcontracted the work to Rolls-Royce. Problems later were experienced with the generators that were installed, and Carter Hold sued ECNZ for breach of contract. As there was no contract between Carter Holt and Rolls-Royce, Carter Holt sued Rolls-Royce for negligence in tort.
 
Rolls-Royce applied for the tort claim against them to be struck out on the basis that ECNZ could not have a claim in both contract and tort.The Court held that where parties are involved in complex commercial relationships, there could only be duties owed in contract, and not in tort. Accordingly, the Court granted Rolls-Royce's application to strike out part of the claim. However, the Court did leave open the question whether a claim in tort might still be arguable for misrepresentation claims in tort, as in Hedley Byrne.

2002


JOHNSON v WATSON CA294/01 5 December 2002

limitation defence - oral construction contract - defective works - s91 Building Act 1991 - causation

Time bar applies to original work but causes of action relating to later prevention work were permitted to proceed.

1998


RIDDELL v PORTEOUS [1999] 1 NZLR 1

tort - negligence - negligent builder - appellants employed builder on labour only basis to construct deck - builder constructed deck which did not correspond to specification and damage resulted - appellants had sold property and were liable to purchasers under warranty in agreement for sale - duty of care - whether sufficient degree of proximity or closeness of relationship to give rise to a duty of care - consideration of policy issues which might operate to negate duty - liability of council - council inspector failed to notice that deck did not correspond to specification - appellants engaged other contractors directly - whether appellants had assumed responsibility for ensuring deck was constructed to specification

The builder owed a duty of care to the appellants to ensure that the work was performed in accordance with the specifications. The relationship was not significantly reduced by the sale. It was always possible that any negligent work might not come to light until after the appellants had sold the house. There were no policy reasons to negate the imposition of a duty. The loss was always going to be suffered by whoever was the current owner of the house. There was no indeterminate liability for an unlimited amount; possible plaintiffs were readily defined; and the builder and council were more able to protect their position via insurance. The council was a liable to a building owner who engaged several contractors to do distinct portions of the work as to an owner who engaged a single contractor. The mere fact that the appellants had engaged the respondent on a labour only contract and had readily engaged the other contractors had not made them the head contractors. Nor had the fact that they had given insufficient attention to the work of each of the contractors make them the creators of any poor workmanship, and there was no claim for contributory negligence in this case.

1995


MARCH CONSTRUCTION LTD v CHRISTCHURCH CITY COUNCIL (1995) 6 TCLR 394

contract - mistake - plaintiff made error in calculating tender - plaintiff's tender much lower than other tenders - whether grounds for rectification made out - whether duty on defendant to inform plaintiff of mistake - whether defendant engaged in misleading and deceptive conduct

March Construction tendered for some from the Christchurch City Council. However, in their tender, their employee entered into their calculations, a sum of $72.75, when they should have used $727.50. This resulted in the unit price being quoted as $250, instead of $968. After the council had accepted March's tender, the mistake was discovered by March, and they subsequently sought relief from the court. claiming that the councils silence on the mistake, constituted misrepresentation. The court refused relief, stating the council had no legal obligation to point out to March that they had made a mistake in their tender price.

1993

BELLAMY v HEGOTULE DISTRICT COURT OTAHUHU PLT NO 3511/91 1 December 1993

contract - building dispute - breach of implied terms - quantum meruit - repudiation - set off - express terms

Held that the implied terms as to work being completed in a proper and tradesmanlike manner were breached by the plaintiff, the plaintiff repudiated the contract and is able to claim on a quantum meruit basis. However, the defendant was entitled to a setoff being the cost of remedying the work and completing the contract.


1984


MORTON v DOUGLAS HOMES LTD [1984] 2 NZLR 548

negligence - duty of care - defective foundations - liability of engineer, development company and local authority for cost of repairs and diminution in value of residential flats - concurrent liability - contributory negligence - apportionment of liability

Between 1976 and 1977 Douglas Homes Ltd built four flats in a residential subdivision in Waimairi County, Canterbury over the top of an old shingle pit. Before construction, the directors had been advised by an engineer on the work necessary for the laying of foundations for two flats. One of the directors did not ensure that the engineer’s advice was adhered to in the construction of the foundations of one flat. The other director specifically took charge of the works on the other, and failed to ensure the engineer’s advice was followed. The directors of Douglas Homes Ltd could be held liable for their negligence as, the principle of limited liability protects shareholders and not directors, and a director is as responsible for his own torts as any other servant or agent. It was held that in establishing whether a director owed a duty of care the test was to be that established in Anns v Merton London Borough Council and that a duty of care was founded upon the control a director exercised over the operations of a company.

1981

J & J C ABRAMS LTD v ANCLIFFE [1981] 1 NZLR 244 3 June 1981 (CA)

negligence - whether Judge's finding of liability in negligence was justified on the evidence - economic loss

Builder claimed balance owing for work done by him on the construction of two residential units. Client counterclaimed for greater amount alleging economic loss as a consequence of the builder's negligence. Judge at first instance found the builder negligent and awarded damages on the counterclaim. Appeal dismissed.


1978

J & J C ABRAMS LTD v ANCLIFFE [1978] 2 NZLR 420 8 June 1978 (HC)

building contracts - engineers and architects - negligence - economic loss - whether builder in breach of a duty of care to owner in giving his estimate - whether builder in breach of a duty to confirm price when he knew that it would greatly exceed his estimate - mitigation of loss

Builder estimated cost of constructing two residential units at $30,500. The owner inquired about a final price but construction had reached a stage where he was committed to complete before he was told that the price would be $57,500. Held that the claimant was under a duty of care in giving the estimate and a reasonable builder in his position would have told the defendant of his later misgivings about the estimate before the defendant became finally completed to the uneconomic completion of the units. Breach of duty established. Defendant had not acted reasonably to mitigate his loss.

*note appealed to Court of Appeal but appeal dismissed.
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