Rairoa v Ngatokoa and Tuakana Builders Limited [2006] CKHC 2; PLT 42 of 2003 (4 July 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

PLT NO. 42/2003

BETWEEN

MERE RAIROA of Rarotonga,
Shop Assistant
First Plaintiff

AND

TOKOA RAIROA of Rarotonga
Air Traffic Controller
Second Plaintiff

AND

NGATOKOA AND TUAKANA BUILDERS LIMITED
a duly incorporated company having its registered office in Rarotonga
First Defendant

AND

NGATOKOA TANGIMETUA
of Rarotonga, Builder
Second Defendant

Counsel: Mr Little & Miss Francis for the Plaintiffs
Mr N George for the Defendants

Dates of Hearing: 3-4 July 2006

JUDGMENT OF NICHOLSON J

Introduction

[1] The Plaintiffs seek damages for the alleged faulty installation of a roof and bi-fold door in their home. The basic facts proved in the evidence are that on the 10th of July 2002 a quote was given to the Plaintiffs on the letterhead of N & T Builders Limited but signed by Ngatokoa Tangimetua (Sepha) as builder. The quote was for material and labour with the quoted total cost of labour at $18,700.00. The quote noted that labour included setting the profile, digging and filling footing, laying foundation blocks from foundation to top plate, preparing beams, rafters, ceiling, perlins, roof, framing, lining and finishing.

[2] It stated that plumbing, electricity, exterior doors, windows, tiles, paints and machinery hire were not included in the labour cost quote. That quote was accepted by the Plaintiffs in about August or September 2002 and an oral contract was made, it not being reduced to writing.

[3] On the 9th of October 2002 the Ministry of Works Building Controller approved the plans for the house. Construction started in October 2002. Mrs Rairoa went to New Zealand in late October 2002 returning in November and on her return the Plaintiffs paid the first invoice from the Defendants, on the 15th of November by way of a cheque for $8,000.00. They received a further invoice for $7,000.00 in January which they paid on the 10th of January.

[4] Unfortunately, the Plaintiffs suffered a tragedy with a young son being involved in an accident. They flew to New Zealand with him at short notice and unfortunately he died. They returned to Rarotonga to bury their son.

[5] On their return, they found that the roof had been installed and bi-fold door had been installed. There were some dispute in evidence as to whether this was authorized or not but as it turns out that is not relevant to the issue of liability because in fact they were installed and the only issue is whether there was a breach of the appropriate standards in installing them.

[6] There was on their return dispute about the work and its quality and in February 2003 Mrs Rairoa stopped the builders from continuing and they stopped.

[7] Mr and Mrs Rairoa made a complaint to the Ministry of Works Building Inspectors about the standard of work and what had been done and accordingly on the 26th of March 2003 the house was inspected by the Ministry of Works Building Inspectors Mr Williams and Mr Kamana and they provided a report on the work dated that day.

[8] On the 27th of January 2004 Mr Joseph Akaruru of the Ministry of Works inspected the house as a follow up of the March 2003 report and found that many of the items had been rectified.

Parties to the Oral Contract

[9] It is clear that both of the Plaintiffs Mr and Mrs Rairoa were parties to the contract; the issue has been raised as to whether both Defendants were parties to the contract.

[10] Having regard in particular to the wording of the quote which although it has the letterhead N & T Builders Limited was signed by Mr Ngatokoa Tangimetua personally and it stated, "thank you for allowing me to quote and I hope you find my quote competitive." Having regard to the description of the role played by him in the matter, I find it proved on the balance of probabilities that both of the Defendants Ngatokoa and Tuakana Builders Limited and Ngatokoa Tangimetua himself personally were jointly and severally parties to the contract.

Liability

[11] The cause of action pleaded in the original statement of claim was repeated in the amended statement of claim.

[12] There are two basic causes of action, they are pleaded in paragraphs 12 and 13 of the amended statement of claim. Pragrapha 12 says "the contract referred to in paragraph 2 above contained an implied term that the Defendants would carry out the labour works to the standard of a reasonable builder", so an allegation of breach of an implied term to carry out work to the standard of a reasonable builder. That allegation is admitted in the Defendants statement of defense.

[13] The additional and alternative cause of action is pleaded in paragraph 13 "the work carried out by the Defendants was substandard, negligent and below the standards of a reasonable builder, a cause of action in negligence." That cause of action is denied by the Defendants in their statement of defense.

[14] In his closing submissions, Mr George expanded on the legal basis of the defense. He pointed out that there was no written contract and submitted that one could not imply two warranties in the contract, one a warranty of good workmanship, and secondly a warranty to deliver a fully completed house without fault.

[15] He submitted that so far as the roofing was concerned, the Plaintiffs were aware of the limitations which the Second Defendant had which they conveyed to them, that he was not aware of the suppliers requirements for that roofing and he would rely on his ordinary skills as a builder.

[16] Mr George submitted that Mrs Rairoa did not attempt to get Mr Nicholas whom she had brought into the matter as I will describe soon, to do the roofing, that she accepted the risks involved with the Second Defendant doing the roofing that she gambled and must accept the consequences.

[17] Mr George submitted that the Second Defendant exhibited his skills competently and despite not being able to follow the supplier’s specifications was able to put a Besalon roof on satisfactorily.

[18] He submitted that the roof had stood five cyclones without any part of it being blown away or with any leaks. So far as the bi-fold door was concerned, Mr George submitted that the Defendant claims that it was within the competence of any builder or builder’s labourer to install properly and this the Second Defendant did.

[19] He submitted that the difficulties with, the door arose from abusive use of the door by the Plaintiffs or their children causing it to derail and causing the problems to the wheel in the door.

[20] Mr. George submitted that the door was competently installed and functioning until rough usage caused it to be derailed.

[21] Mrs Rairoa played the main role on behalf of the Plaintiffs in making arrangements with the Defendants and being involved with the construction work by them, she did this while her husband attended to his occupation.

[22] She said that before the roof was installed she asked that the Second Defendant Sepha did not put on the roof as she wanted to be there to make sure that they did it properly. She said that she had a Besalon roofing brochure and that she showed this to Sepha before he put the roof on. She pointed out that on page 2 of that brochure it showed the proper spacing of the roof batterns or perlins. She said she referred also the drawing installation plan to Sepha before the roof went on; she said that this contained instructions on how the roof was to be put on. She said that when she showed him these documents he tried to ignore her and said the roofing was going to be short and that he threw the brochure and the roof drawing into a bush. She accordingly went and saw Albert Nicholas and asked him to speak to Sepha.

[23] Albert Nicholas gave evidence, he is a builder. He said that he has installed this particular type of roofing. He was referred to the Besalon roof brochure, a copy which was produced as Exhibit 4A and he said he saw this at the house when Mrs Rairoa took him there. She actually wanted him to install it, but that she said the builder, the Second Defendant Sepha was doing it.

[24] He said that she dragged him up to show Sepha how to install the roof. He said that Sepha told him that there was something not fitting properly and so accordingly he and Mr Nicholas measured the actual roof dimension and compared it with the size of the iron which was in the package which had been received for installation. He laid it out he said and checked it and found that the iron wasn’t short. He said that the roof comes with the brochure Exhibit 4A and a laying plan Exhibit 4B and that he remembers showing those documents to the Second Defendant. He said that when he did this the roof was on the ground and no perlins were in place.

[25] He said he explained to the Second Defendant about how the roof went on and the main thing he stressed was that there had to be a perlin at every bend.

[26] The building construction was supervised by Mr Timote Tangiruaine. He was employed as the Supervisor by the Plaintiffs. He said, referring to the Besalon Roofing Brochure Exhibit 4A and plan Exhibit 4B he saw them during the time of the installation of the roofing. He said the original plan for the building showed long run iron but this was changed by the owners who ordered the Besalon type of roofing. He said that he advised the second Defendant Sepha of the change and showed him those two documents the brochure and the installation plan. He said that he advised the Second Defendant that there was a need to install closer spacing of the perlins from 800 millimetres to 400 millimetres. He said that when he did this the roof was not on the house. He said the perlins were in the process of being put on but were not completed.

[27] Later however, after the roof was installed, he said he saw a sag in the roof and this he said he found out was because the perlins had been installed at spaces of 800 millimetres apart and not 400 millimetres as specified. He said that because the specifications of the roof was not followed the roof was not able to function as it should.

[28] The Plaintiffs complained to the Ministry of Works and Mr Angaroa Williams and Mr Mike Kamana inspected the building on the 24th of March and reported on it. With relation to the roof, they reported and Mr Angaroa Williams confirmed in his evidence that the roofing iron had lots of dents in it with some of the edges lifting. That rain water was ponding where roofing had been pushed down. He attached photographs to his report to show this.

[29] He went on to say there was more lifting at some flashings and dents around the solar heater. He noticed that the nailing sequence was not even which indicated that the perlins size and spacing were not according to the specifications provided by the supplier. That, he said was the main reason for the dents in the roofing. He said that according to the owner the builder ignored the fixing specifications provided by the supplier of the roofing iron hence one side of the house was installed the wrong way with the male rib lapping on top when it should be the female rib on top.

[30] Examination of the brochure 4A and the layout plan shows clearly that the spacing for the perlins should be not more than 400 millimeters and that the lapping should be the female over the male.

[31] In his evidence Mr Tangimetua said with relation to the roofing, that he had a conversation with Mrs Rairoa about the roofing. This was the first time he had installed a roof like this and he told her that he would put the roofing on and he will do his best to get it done. She said she did not hand him either the brochure or the laying plan Exhibit 4A and B.

[32] She said that he didn’t see the documents the brochure Exhibit 4A or the laying plan Exhibit B when they pulled out the roof sheeting from the package. He said they were ready to nail the roofing then but that he then looked at a document, well one of those documents and at that stage they had already done the perlins. He said "we had to do something to get the sheets on so they would go on the perlins."

[33] He said that during the time when Mrs Rairoa got Albert Nicholas, they found the brochure in the packing and the layout plan. He said that was before they put the roofing on. He said when Albert came over he had a look at the layout plan and the brochure. He said that Mrs Rairoa had fetched Albert Nicholas and he thought that that was because he told her that he had not done that type of roofing before.

[34] He said that when Albert Nicholas came the roofing was still down, that Albert explained to him the procedures how to install that type of roofing, he explained to him about the female on top of the male sheets. He said that Mr Nicholas played no active part other than talking to him about it.

[35] The defendants called Mr Akaruru, a Building Inspector of the Ministry of Works, who prepared a follow up report to the report of the 24th March 2004. Mr Akaruru found on his inspection that many of the defects as pointed out in that report had been remedied. For example, missing bolts put in, the ceiling had been secured properly, the concrete steps had been finished, the shower and vanity unit had been completed, the railings to the decking had been done.

[36] However, so far as the roofing was concerned, in his report, Mr Akaruru said it appears that some work has been done on the roof where flashings to the edge of the roof has been secured down properly but some areas still show lifting at edges. Some dents and lifting throughout the entire roof is still evident due to poor installation by the builder or contractor of the roofing and with rain water ponding in these areas, are causing rusting in the roofing iron which could be a maintenance problem for the owner in the future. The lifting to some edges of roofing iron could also be cause for risk of the roofing iron being torn away from the building during a cyclone or hurricane which could compromise the safety of Mr Rairoa’s family and to the public as a whole due to flying debris from the roof during such an event.

[37] I find from the evidence that the Defendants agreed to install the Besalon roofing. That in doing so, they took upon themselves the obligation to install it correctly. I find that before they put the iron on, they had the specifications in the brochure and layout as produced as Exhibit 4A and 4B and these documents were explained to the Second Defendant by Mr Nicholas and so he was given full notice of the importance of those specifications and the need to follow them.

[38] However I find that he chose to ignore those specifications in so far as the perlin spacing was concerned. If as he said he had already placed the perlins in position then it was clear that he should not have gone ahead to fix the roof according to those wrongly spaced perlins. He should have as he agreed could have been done used a pinch bar to lift the perlins, take out the nails and re-nail them in the specified spacing.

[39] I also find that the Defendants failed to follow the specifications as to specifically overlapping the male with the female run. I find that these defects caused the dents in the roof and the faults which were found and that the roof is, and continues to be in an unacceptable condition and needs to be rectified.

[40] I find that the errors made were elementary and important errors which a reasonable builder would not and should not make. In these modern days, there are special materials and installations constantly coming on to the market to assist in house and building construction and most people require these up to date methods to be used. Any reasonable and competent builder should be able to follow these and by ignoring them in my view falls below the standard of a reasonable builder. Therefore I find that the Defendants were in breach of the implied term that they would carry out the labour works in installing the roof to the standard of a reasonable builder and I also find that they were negligent in doing that.

[41] So far as the remedy is concerned I accept the evidence that the only appropriate remedy is replacement of the roof. The costs of doing this was stated in evidence in a quote given by Cook Islands Steel Industries Limited the cost being roofing and materials $19,281.24 and with labour making $27,751.24. I accordingly enter Judgment in the Plaintiffs favour against both defendants jointly and severally for that sum in respect of the besalon roof.

[42] I now go on to deal with the other aspect of dispute, the bi-fold door. In her evidence Mrs Rairoa said that they wanted the bi fold door installed and in fact had arranged for somebody else to install it. She said that they were shocked upon their return to Rarotonga to find that it had been installed and that she said that even more, it wasn’t working properly, they couldn’t open it properly.

[43] The building supervisor Mr Tangiruaine said that he inspected the bi fold door, that it was not opening and closing as it should do, he said that the height of the opening for the door was not according to plan, that it was about 1 block or 200 millimeters more than it should have been, and he believed that the door opening was not square.

[44] Mr Williams in his March 2003 report said, "the main entrance element and bi fold door would not open because according to the owner the builder had worked on the door and cut away some parts of the door in the effort to make the door close, but in the process damaged the rollers, hence not opening the bi fold. Noticed also that the opening of the doorway was packed because it was too high.

[45] The Plaintiffs called the evidence of Mr Shaheem, he is the Production Manager employed by Cook Islands Steel Limited and has 13 years experienced in aluminium joinery. He said he inspected the bi fold aluminium door last Wednesday the 28th of June and said that the door was not installed properly; he said the frame was not square or plumb and that the guy who installed it did not frame it properly. He said that there was grinding on the door and that this happened during installation of the door not before and not after. He said he measured the hole made for the door and the main thing he found about it was that it was not square. He said that you could see this with the naked eye; he said that the hole was outside accepted tolerances.

[46] He was referred to a report which had earlier been made by a Mr Kevin Dent of Fletcher Aluminium in Auckland and Mr Shaheem agreed with and endorsed the following points which Mr Dent had made in that letter. First the installation was not in accordance with standard procedures, necessary for the smooth operation of a bi fold door. Second, the top and bottom frame were concave, the variance over the width of the frame was 11 millimeters; this should be plus or minus 2 millimeters maximum. Third, the top roller assembly on the fourth panel has been broken and one wheel has come off allowing the entire assembly to float. Fourth, the locking style on the fifth channel has been ground at the bottom in an attempt to allow the hinge panel to close. Fifth, the bottom guide on the fourth panel has been ground as per above. Sixth, the bottom roller guides were catching on the flush bolt keepers because of item 2. Seven, the installation was not square, with a variance of 8 millimeters on squareness. Mr Shaheem said that to fix the problem needed the replacement of the whole door as 90% of the material could not be used again.

[47] In his evidence Mr Tangimetua has said the doors were installed about one week before Mr and Mrs Rairoa came back. During that time the door was okay when he opened and closed it. He said that one big wheel came off the rail doors and they jammed and would not close properly and this was because of misuse by the occupants. He said the children were playing around inside the house and he thought that they played with the door. He said he did not agree with Mr Shaheem that the door was not properly installed, he thought Mr Shaheem was wrong and he said that the frame was square when installed. He said that the hole was square.

[48] In his follow up report Mr Akaruru said about the door, there has been no improvement made to the main entrance aluminium bi fold door, which still has a problem of not opening due to the damaged rollers on the door.

[49] I find the evidence of Mr Shaheem as compelling in this matter, I accept, his experience and ability. I accept that he is gave correct evidence. I accept that the door was not correctly installed as stated by him principally because the hole and the framing were not square and I find that the problems with the door arose from incorrect installation and not from misuse by the Plaintiffs or their children.

[50] Accordingly I find that the Defendants breached the implied standard of reasonable care in installing the door and also were negligent in installing it. I accept the evidence of Mr Shaheem that the only remedy is replacement of the door.

[51] Mrs Mary Williams a Sales Consultant of the Cook Islands & Steel gave evidence. She produced a quote from Fletcher Steel for the supply of a replacement bi fold door the cost being $4,110.68. However, this includes New Zealand GST of $456.74 and as the door would be supplied for export that GST would not be payable. So the cost of supplying the door should be adjusted by that amount.

[52] Mrs Williams gave evidence that the cost of installing the door would be $1,800.00 including VAT making a total cost of including the full amount of the supplier $4,110.68, of $5,910.68. However, that figure needs to be adjusted because of the GST figure. Now I get that calculation that the cost of $4,110.68 plus the $1,800.00 comes to $5,910.68 taking the GST of $456.74 of that gives a figure of $5,453.94. This requires a slight adjustment of twenty odd dollars to the amended statement of claim which I allow. I accordingly enter judgment in favour of the Plaintiffs against both Defendants for the sum of $5,453.94 in respect of the bi fold door.

[53] In their amended Statement of Claim the Plaintiffs sought in addition to the damages for the roof and the door, the sum of $1,500.00 for balance of defects. However this aspect was not pursued at the hearing and Mr Little has accepted that it is not payable. So I therefore do not make any award with relation to that item.

[54] That’s the judgment of the Court. The Plaintiffs may be entitled to interest and in my view, certainly are entitled to costs. I invite a memorandum on interest and costs to be filed and served, within 14 days of today and remember serve Mr George by personal delivery or registered post. And the defendants are to respond within 14 days of receiving that memorandum. When I receive those documents I will decide the issue of interest and costs on the documents.

JUDGE