C E SANKEY V HARRISON CONSTRUCTION LIMITED AND ANOR HC WHA CIV 2007-488-000549

C E SANKEY V HARRISON CONSTRUCTION LIMITED AND ANOR HC WHA CIV 2007-488-000549

The application for summary judgment was declined because there was evidence the builder had responsibility for siting the concrete slab (specification required contractor to perform setting out and builder prepared the plans and carried out preparatory works) and evidence that the slab was placed contrary to the building consent; therefore there was an arguable breach of contract and/or duty of care and the defendant could not show no basis existed for the plaintiff's causes of action.

Citation
openlaw-63fe0fbd_1fe4_4a78_8411_b70f57b4d3ab.pdf
Parties
Plaintiff: C E Sankey; First Defendant: Harrison Construction Limited; Second Defendant: Whangarei District Council
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 November 2008
Procedural Posture
Building Dispute Contract and Tort / Summary Judgment Application
Outcome
Application for summary judgment dismissed
Legal Topics
Summary Judgment, Duty of Care, Building Consent Compliance, Contractual Allocation of Risk, Concurrent Liability, Costs
Contract Law Tort (negligence) Building Law Civil Procedure Summary Judgment Duty of Care Building Consent Compliance Contractual Allocation of Risk +2 more

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Parties

C E Sankey

Plaintiff

Harrison Construction Limited

First Defendant

Whangarei District Council

Second Defendant

Procedural Posture

Building Dispute Contract and Tort / Summary Judgment Application

Legal Issues

  1. 1 Whether clause 15 of the contract (Clients Work) excluded the builder's liability for site preparation, foundations and slab location
  2. 2 Whether the builder owed a duty in tort to take reasonable care in or while performing the contract to ensure the slab complied with the building consent
  3. 3 Whether there was any basis for the plaintiff's causes of action such that summary judgment for the defendant should be granted

Ratio Decidendi

The application for summary judgment was declined because there was evidence the builder had responsibility for siting the concrete slab (specification required contractor to perform setting out and builder prepared the plans and carried out preparatory works) and evidence that the slab was placed contrary to the building consent; therefore there was an arguable breach of contract and/or duty of care and the defendant could not show no basis existed for the plaintiff's causes of action.

Court Disposition

Application for summary judgment dismissed

Orders

  • If plaintiff seeks costs she must file a memorandum with submissions within 14 days of delivery of judgment
  • Defendant to file a replying memorandum within 14 days of service of the plaintiff's memorandum