High Court 30 October 2023

I was engaged by Argon Construction Ltd, First Defendant, in proceedings claiming defects to an apartment building. The matter proceeded to completion of the trial.

I was referenced 75 times in the judgement and the Judge accepted all of my findings that contrasted sharply with the evidence for the Plaintiff, as quoted below.

[64] Mr Alexander, Argon’s expert building surveyor, was a model witness. His evidence was substantially helpful, presented in a coherent and well-structured manner, and his criticisms of the plaintiffs’ experts was restrained and measured. I agree with his criticism. I accept Mr McCartney’s submission that Mr Alexander’s evidence was unassailable. I acknowledge the significant constraints that the plaintiffs’ expert building surveyors were operating under, but by comparison their evidence falls short of the quality and standard adopted by Mr Alexander. I agree with and accept the problems he identifies, and his analysis of them, as well as his remedial scope.

[65] The plaintiffs’ criticisms of Mr Alexander are misplaced. Mr Alexander is well qualified to speak about concrete balconies over non-habitable spaces and to place some emphasis on that fact in diagnosing the problems and proposing a solution. He has substantial and relevant experience in the New Zealand building industry. His company, Alexander & Co Ltd, has been investigating building failure and assisting with dispute resolutions since the beginning of 2000.

[66] I agree and accept Mr Alexander’s analysis that there were two problems that arose with the balconies:

[67] The plaintiffs’ expert witnesses focus on the failure of the membrane as the main mechanism of failure. However, I agree with Mr Alexander that that is not entirely correct.

[69] Mr Alexander’s evidence, which I accept and adopt, does however provide substantial support for the plaintiffs’ contention that the matters pleaded are actionable defects and sufficiently widespread to be described as systemic.

[85] ……. On that critical issue I agree with and adopt the findings reached by Mr Alexander, namely that water penetration “into and through the façade wall assembly” has been limited.

[90] I accept and adopt the following findings made by Mr Alexander:

[96] For the reasons given above, I prefer and accept the evidence of Mr Alexander on these issues.

[98] I note also that Mr Alexander was the only witness who established that the largest cause of leaking into the carpark was via the services duct.

[100] I agree with Mr Alexander that it is also important to place the defects in context.

[218] Mr Hakin is on sound ground when he contends that Bianco Off Queen is a high-maintenance building. I note that Mr Alexander shares that view.

[240] I find that Mr Alexander’s scope of repairs is the appropriate, reasonable scope of repairs to address the proven defects in this case.

[246]. ……. Ironically, if I were to accept the plaintiffs’ criticisms of Mr Alexander and reject his evidence, then there would be no scope before the Court that could be accepted. Ultimately, it is for the plaintiffs to prove their case, including a reasonable scope of repairs for which the defendants might properly be responsible.

[247] Mr Alexander responsibly acknowledged that aspects of the plaintiffs’ remedial scope were commonplace.

[267] My rejection of the plaintiffs’ proposed scope of remedial works and acceptance and adoption of Mr Alexander’s scope presents challenges and difficulties for the plaintiffs’ case and my calculation of quantum.

JUDGMENT OF ANDREW J 
BODY CORPORATE 406198 v ARGON CONSTRUCTION LTD & OR [2023] NZHC 3034 [30 October 2023]