Brebner v Collie Hc Ak

JurisdictionNew Zealand
CourtHigh Court
JudgePeters J
Judgment Date08 March 2013
Neutral Citation[2013] NZHC 63
Docket NumberCIV-2012-404-1447

[2013] NZHC 63



Michelle Anne Brebner And Darcy Raymond Wentzel
Luonie Beth Collie

G D R Shand and N J van der Wal for Appellants Respondent in person

Catchline:Appeal from a Weathertight Homes Tribunal decision which determined respondent vendor was not liable in tort or in contract — appellants purchasers commenced proceedings in Tribunal in respect of leaks in residential property purchased from vendor — purchaser claimed in tort on the basis that the vendor was liable for breach of a duty of care and in contract — purchaser also claimed a breach of warranty in agreement for sale and purchase between the parties — whether vendor had breached warranty in agreement — whether agreement required all work to be completed in conformity with BRANZ's good practice guidelines — whether vendor was liable as a developer.


The Tribunal did not err in the conclusions it reached on the purchasers' claim in tort. The degree of control the vendor exercised did not appear to have been any greater than that to be expected of anyone engaging a builder to build a house in which they intended to live. The vendor was not motivated by a wish to make a profit in the sense required of a developer. Moreover, the evidence was that the deficiencies proved to have given rise to moisture ingress were features of work undertaken by the builder, or for which he was responsible. Accordingly, even if the purchasers were able to establish a duty of care had arisen after the builder ceased work on the site, the question of causation would arise.

Moreover there had been contributory negligence by the purchasers. Prior to entering into the agreement, the purchasers knew that the Department of Building and Housing had given two determinations, each of which advised of matters that plainly would affect weathertightness. The purchasers also received the builder's report before declaring the agreement unconditional. That report alerted any reader to many issues with the property.

On its face, clause 6.2(5)(b) was a warranty by the vendor that the works she had caused to be undertaken had been completed in compliance with the building consent issued for the works. There was no reason to believe the parties intended any different meaning, simply because the purchasers were in possession of excerpts of Department of Building and Housing (“DBH”) determinations. The appeal proceeded (as in the Tribunal) on the basis that the relevant plans and specifications were those submitted with the application for building consent. The purchasers proceeded on the basis that they would have established a breach of the warranty if they could establish a failure to observe any aspect of any plan, specification or condition. This was not the correct approach. A purchaser who sought to establish a breach of clause 6.2(5)(b) had to satisfy the Court that the works as a whole were not completed in compliance with the consent read as a whole — not every omission or departure would give rise to a breach of warranty.

Provisions in a specification that addressed matters solely of concern to the contracting parties (vendor and builder in this case) did not form part of the consent for the purposes of clause 6.2(5)(b). Without more, a failure to act in accordance with a BRANZ guideline did not constitute a failure to observe good trade practice. On the other hand, the failure to compete the works in compliance with two conditions imposed by the Council did give rise to a breach of clause 6.5(b), as the failure rendered the completed works non-compliant with the consent. It was therefore necessary to refer the matter back to the Tribunal to consider the issue of damages arising from that breach of warranty and whether events after the execution of the agreement and prior to it being declared unconditional precluded the purchasers asserting a breach of warranty or recovering for any such breach.

Appeal allowed in part and matter remitted back to the Tribunal.


Peters J

This judgment was delivered by Justice Peters on 8 March 2013 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ……………………………..


The Appellants (“purchasers”) appeal from a decision of the Weathertight Homes Tribunal (“Tribunal”), sitting at Auckland. 1


The purchasers commenced proceedings in the Tribunal in respect of leaks in a residential property they purchased from the Respondent (“vendor”) in 2007. They sought relief in tort on the basis that the vendor was liable to them for breach of a duty of care and in contract for breach of warranty in the agreement for sale and purchase between the parties (“agreement”). The claim in contract was based on clause 6.2(5)(b) of the agreement, being clause 6.2(5)(b) of the eighth edition of the Auckland District Law Society form of agreement for sale and purchase.


The Tribunal determined:

  • (a) that the house was subject to moisture ingress due to deficiencies in the installation of joinery; a flat topped chimney; and insufficient ground clearances on some elevations; 2

  • (b) that further damage was likely as a result of other defects; 3

  • (c) that remediation of the house would cost $350,384 (including GST) and that the vendors had suffered consequential losses of $37,593.48;

  • (d) that the vendor was not liable in tort as she did not owe a duty of care to the purchasers; and

  • (e) that the vendor was not liable in contract as she had not breached clause 6.2(5)(b) of the agreement.


On appeal the purchasers contended that moisture ingress has been caused by a greater number of defects than the Tribunal determined, and that the Tribunal erred in the determinations referred to in (d) and (e). The purchasers sought an award of the sums referred to in (c) and an award of $50,000 general damages, being $25,000 for each of them. Before me the vendor took issue with the cost of repairs but she did not file a notice of cross appeal, and for that reason I do not propose to consider that issue.

Jurisdiction/approach on appeal

The purchasers have a general right of appeal from the determination, as follows: 4

93 Right of appeal

A party to a claim that has been determined by the tribunal may appeal on a question of law or fact that arises from the determination.


The approach of the Court on appeal is that set out in Austin Nicholls & Co Inc v Stichting Lodestar. 5


The Court's powers on appeal are as follows: 6

95 Determination of appeal

  • (1) In its determination of any appeal, the court may do any 1 or more of the following things:

    • (a) confirm, modify, or reverse the determination or any part of it:

    • (b) exercise any of the powers that could have been exercised by the tribunal in relation to the claim to which the appeal relates.


There is also power to refer the matter back to the Tribunal for further consideration. 7


No appeal lies from a decision of the High Court on appeal from the Tribunal. 8


I have taken the facts from the determination. Those which are relevant to the issues that arise on appeal are as follows.


In 1999 the vendor bought a section in Orakei, Auckland. The vendor subdivided the section into two lots, selling one and retaining the other.


In 2002 the vendor entered a “turn key construction” contract with a builder trading as “Euro Vision Homes”, Mr Marston (now deceased), to build a house on the site that she had retained. The essence of a turn key construction contract is that the contractor will carry out works for a fixed price, the intention being that the other party will be required to do little more than “turn a key” to the completed building.


In April 2002 the builder lodged an application for building consent to construct the house. What is now Auckland Council (“Council”) granted building consent on 7 May 2002 (“consent”). Matters relating to the consent are important to the appeal but for now it is enough to say that consent was sought and granted for the construction of a monolithically clad house, without a ventilated cavity between the exterior cladding and internal timber framing.


The house was built in 2002, during which time the Council carried out several inspections. The works passed each such inspection.


The relationship between the vendor and Mr Marston broke down and Mr Marston ceased work on the site in late 2002 or early 2003.


The Council's first “final” inspection took place on 17 January 2003. The Council did not identify any weathertightness issues at this inspection but advised that it required six relatively minor matters to be attended to before it would issue a Code Compliance Certificate (“CCC”). These matters included the installation of a top rail to balustrades on a deck, that rail itself becoming a possible cause of moisture ingress.


On 16 January 2004 the Council carried out a second “final” inspection. In a subsequent letter to the vendor, the Council confirmed that the items that it had identified as requiring attention after the first final inspection had been completed. However, the Council said its inspector had noted the lack of a cavity between cladding and framing and it advised that a team of experts would carry out a further inspection of the cladding.


Following this inspection, the Council issued a “Notice to Rectify” dated 19 July 2004, 9 requiring the vendor to rectify some of the works.


The vendor disputed the notice and applied for determination of the dispute. 10 The Department of Building and Housing (“DBH”) issued its determination in May 2005 which was to the effect that various matters required attention and that the cladding system as installed did not comply with the building code. The DBH stated that these were deficiencies in respect...

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4 cases
  • Saffioti v Ward
    • New Zealand
    • High Court
    • 29 October 2013
    ...14 At [25]. 15 Newton v Stewart [2013] NZHC 970 at [98]. 16 Keven Investments Ltd v Montgomery [2012] NZHC 1596 . 17 Brebner v Collie [2013] NZHC 63 18 Heath v Auckland City Council [2012] NZWHT Auckland 20 at [63]–[67]. 19 Van Huijsduijnen v Woodley [2012] NZWHT Auckland 11 at [184]–[186] ......
  • Brebner v Collie
    • New Zealand
    • High Court
    • 8 March 2013
    ...HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2012-404-1447 [2013] NZHC 63 Hearing: BETWEEN MICHELLE ANNE BREBNER AND DARCY RAYMOND WENTZEL Appellants AND LUONIE BETH COLLIE Respondent 28 June 2012 Appearances: G D R Shand and N J van der Wal for Appellants Respondent in person Judgment: ......
  • Saffioti v Ward
    • New Zealand
    • High Court
    • 29 October 2013
    ...are: 15 16 17 18 19 20 21 Newton v Stewart [2013] NZHC 970 at [98]. Keven Investments Ltd v Montgomery [2012] NZHC 1596. Brebner v Collie [2013] NZHC 63. Heath v Auckland City Council [2012] NZWHT Auckland 20 at Van Huijsduijnen v Woodley [2012] NZWHT Auckland 11 at [184]–[186] (this not be......
  • Brebner & Anor v Collie & Anor
    • New Zealand
    • Weathertight Homes Tribunal
    • 15 August 2013 comply with ground clearances required by the consent.3 1 Brebner v Collie [2012] NZWHT Auckland 15 at [41]-[43]. Brebner v Collie [2013] NZHC 63 at Above n 2 at [26] and [84]. 2 3 The report led to correspondence between the parties’ solicitors. [5] The claimants’ solicitor wrote to Ms ......

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