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Understanding Designers’ Roles and Responsibilities

Discuss about the Construction Law for Designs Cause Building Disasters.

An individual or an organization is a designer, who is involved in the business of modifying or preparing for projects’ construction, or the arrangement of, or instructing other people to do the same. Design details, drawings, bills of quality, specifications and calculations of designs. Designers may be consulting engineers, architects, interior designers and quantity surveyors, or anybody who is involved in altering and specifications of designs as part of their job. They can be specialist contractor, principal contractors, commercial clients or trades-people, if they involve actively in their project’s design work. The decision of a designer affects the safety and health of not only those who are involved in the construction of the building as well as those who occupy the building.

There are various things that can go wrong when the responsibilities are taken by professionals for designing and creating upon the professional a duty of care towards the other people. If there some damage that has been caused to a project and the party who has suffered a loss, or believes that a loss has been suffered would not be hesitant in bringing an action against the other party. The contracts aid in assisting in places where there are gaps in the law. There is a duty that has been placed under the law of tort whether or not these have been placed under the terms of the contract. Thus, in case there is any damage which is caused to a building due to an earthquake and the same could have been reasonably foreseen and avoided the law of tort would be applicable.

Where it can be reasonably foreseen by the defendant that an omission or act by him would cause harm to the plaintiff or defendant, there would exist a duty to care.[1] It was in the case of Donoghue v. Stevenson that the principle of product liability had been established wherein it has been stated that even in cases where no contract or proximity exists between a party there would still exist a duty to care. It establishes the principle that any kind of act or omission which could be reasonably foreseen to cause damage to a neighbor. Neighbors, under law, are those who are directly and closely affected by a certain act.[2]

The main reason why there is employment of a professional is because of the skills that are brought by the person in the project. The designer brings in experience and knowledge so that the duties are performed in an expert manner, both for carrying out tasks that had been pre-agreed to and for contributing where opinions and advice are needed. The duty of warning even if not dealt in writing in a contract, can be implied by way of contractual duty or through the law of tort towards the third party. Thus, where there is a reasonable doubt in the designer that there is likely to be a damage that is going to be caused to the building due to the earthquake and the same can be foreseen reasonably, he is to warn the third party regarding the same. Regardless of what the experience is or the concerned individuals’ knowledge the foundation for the standard of care and skill which is required to be achieved is to be same as for that particular profession. It will be unlikely that an excuse that a latest technology for protecting the building from an earthquake or avoiding the same altogether was not known would not be an excuse which is valid. Further, if there is any specialist knowledge which is claimed in this field it would increase likely the expectation level with respect to the care and skill which is required to be achieved. Further if it seems that there is some issue with the design that may in future cause harm due to an earthquake then same is required to be informed.  In the case of London School Board v Northcraft[3] it was opined by the court that where there was a clerk who had been employed by the quantity surveyors had made errors that were clerical in nature and led to the overpayments of £118 and £15 15s with respect to works which was worth of £12,000. There was a rejection of the claim for negligence as the court had stated that the circumstances were one that was not remarkable. Similarly, in the case of designing as well if there was reasonable care that had been taken for ensuring the safety of the business and the circumstance of the negligence was one which was not remarkable then a claim for negligence would not rise against the designers.

What Happens When Things Go Wrong?

However, in contrast in the case of Tyrer v District Auditor of Monmouthshire[4], there was a mathematical error that had been made while issuance of an interim certificate. Though, this kind of error could have happened at any time, it was found that the error was one that was negligent. Keeping in mind the cases’ age and the technology which was available, for providing assistance with calculation, unless the same is minor relatively in comparison with the entire project, any errors related to numeracy is to cause likely a claim in such circumstances.

In the case of Pride Valley Foods Ltd v Hall & Partners (Contract Management) Ltd (2001)[5] it was opined that the project managers who had been engaged for the construct and design of a factory for bread making had negligently acted as there was a failure on their part to warn the clients that in order for keeping the costs low the expanded polystyrene panels that had been used in case of a fire hazard would be highly combustible. It was argued by the defendant that at various times they had advised the client regarding the same however on facts it was found that the same was not true. As illustrated in this case it is necessary that a confirmation in writing must be taken for any essential advice which has been provided to the client with respect to the risks that may be there with respect to the design. Thus, even in the case where a building is being designed any particular important information that is given with respect to any damage that may in future be caused due to an earthquake it is necessary that the same should be informed to the client and written confirmation regarding the same is to be obtained. In the HOK Sports Ltd. (formerly Lobb Partnership Ltd.) v Aintree Racecourse Co. Ltd.[6] the arbitration decision has been referred where it was opined that there was a duty that was owed to Aintree from HOF for advising that the designs that they had produced was leading to there being a reduction in the standing space of 685 people in the stand thereby making the capacity less than that which was specified. It was on a particular skill that the liability of HOK was based on the particular skill set that it had which was set in the racecourse area stand design and its knowledge that it had prior was a matter of fact that the new area that was to be designed was to increase the capacity to the maximum which was possible. Thus this illustration indicates that where there is declared level of specialism and the provider’s knowledge then in that case there would be an increase in the duty of the designer. Thus were the designer specifically indicates that there are a specialist in the area of protecting the building from the impact of earthquakes and are earthquake engineers, then in that case the liability would be increased.  

Duty of Care and Law of Tort - A Legal Overview

If there is an intention of passing on the responsibilities it is necessary to ensure that it is a back to back contractual relationship, i.e. there should be a similarity between the delegatee and delegator. The case of City of Brantford v Kemp & Wallace-Carruthers & Associates Ltd[7] is the case for delegation of responsibility where there were certain concerns that an architect’s firm had with respect to the nature of soil regarding a project as there were some unusual conditions of the ground due to the place where it was located. It was advised by the architect that there should be advice that should be taken by the employer from a structural engineer, and there was a failure on the part of the engineer to advice with respect to the designs risks. The claim against the architect was not successful as it had been stated openly by them that further advice was required and they were entitled to put reliance upon the engineer’s recommendation, on the other hand the claim against the engineers would be successful. Each case in situations of delegation would turn towards the facts and just because there has been a simple delegation the same would not be sufficient. However there should be an element of “I can do that” attached to the delegation. Thus, even in the case of any additional requirement which the designer may feel needs to be delegated, he may do so. Post such recommendation reliance may be placed upon such advice and claim may not be made against the designer.

In the side of structural engineering in the recent case of Bole & Another v Huntsbuild Limited[8] indicated that the legislation of The Defective Premises Act 1972 can come to the residential occupier’s rescue and liability may be found against the engineer. There were cracks in the walls were discovered by the purchasers and it was found subsequently that it was due to a heave that it had been caused. Since, it was found that this issue could probably have been avoided had it to be a greater depth that the foundations had been dug, the liability would be as opposed to the contractor upon the engineer. This was because the responsibility of the contractor to have the soil that was excavated to be examined so that the depth of the foundation that was appropriate could be discovered.[9]

It is from French Law that the term force majeure stems from, it means superior force. It is not the same as ‘vis major’ or ‘vis majeure’ which means the act of god. It broadly is related to the unforeseen, exceptional, circumstance or events which are not within the reasonable control of an party to a contract and by which there performance of the obligations that they have under a contract is either impeded or prevented. It however, cannot be an event which can be overcome or avoided reasonably, or an event which can be attributed to the negligence of another party. The force majeure clauses in a contract attempt in setting out the situations in which the term is to be made applicable and in the manner in which it is to be treated. Earthquakes, is one of the aspects which is dealt with under the contracts. Some contracts shall consider force majeure to be an even that is relevant. However, it is not contract theory but tort theory which dominates the cases relating to design liability.[10] As a general rule though, a proper basis for a claim of tort is not the breach of a contract.

Applicability of Technology and Specialist Knowledge

There is special relationship which is recognized by the law between the client and the professionals of design. A negligence action will not lie in most situations when it is a privity of contract that the parties are in. However, in the situation wherein there a relationship that is special between the alleged tort feasor and the party who is claiming to be injured and which does not arise in contract, a tort action will be supported by breach of the duty of care (foot note 72). If there is an existence of a legal duty apart from the obligations under contract which exists itself only then will a remedy under tort be available. Though it seems, that the reference of a relationship which does not arise under contract seems to exclude the relationship between the client and design professional created under a contract, this is not the case.[11] Though, there is sometimes reference given by the courts to duties which are imposed separately under the law of tort being one which is independent from the under a contract[12] there however may be a dependency of this legal duty which is separate on the contract in the sense that it may be a contractual relationship that the duty which has given rise to a liability under tort may arise. The legal duty should arise from situation which are extraneous and do not constitute the contract’s elements, it can although be connected to and be dependent on the contract itself.[13]

The individual’s vulnerability and disasters of the organizations would be reduced by way of catastrophe insurance, but the losses scale would not be reduced necessarily. This is mitigation activities role. Earthquake engineering is most important tool for ensuring that the losses from an earthquake are mitigated. The earthquake insurance depending on the conditions of the policy can either be disincentive or incentive. The insurability of the facility that has been constructed would on the other hand against earthquakes be dependent on its engineering design, whether it is commercial building, housing, infrastructure or factories. This interdependency that exists between insurance and earthquake engineering has not been appreciated always and has been exploited rarely.[14]

In the other countries specially in New Zealand, there is a suggestion that unless there is an underpinning of these activities by way of a legislation, which is concerned mainly with the demolition or strengthening the high risk buildings that are in existence, the resistance will be strong and not a lot of progress would be possible. Without there being a legislation that is underpinning, there will simply be no teeth to the supporting actions that are there to be able to bring a reduction in the risks that are highest. 

Delegation of Responsibilities and Legal Liability

Following the experience that New Zealand had with masonry buildings that were old and unreinforced in Murchison in 1929 and Napier in 1931 earthquakes, there were statutory powers which were given to the local authorities for declaring such building that have a capacity of less than 50 per cent of being able to resist the forces are to be specified as buildings that have earthquake risks and require the removal or strengthening of the same by the owner according to a time table that the council has set.[15] Though there has been a considerable reduction however a small number of such buildings still remain.

The earthquake on 22nd February 2011 in Christchurch of 6.1 magnitudes led to the collapse of the Canterbury Television (“CTV”) building.[16] Near two thirds of the death that were caused by the earthquake was due to this collapse. A commission that was government ordered spent months on inspection of the damage that the earthquake caused and finally released a report. It was stated in the findings that was released that it was due to the weak concrete and columns that the building was made of and did not even meet the standards of the buildings that were built in 1986 which led to the collapse. This was contested by the designer of the building. However, there were several deficiencies that the report found in the engineering design of the building and that there was no compliance with the standards that were there at that time. It was also concluded by the commission that there were some issues with the construction of the building.[17] The engineers Alan Reay Consultants Ltd. were blamed by the engineers for developing a design that was noncompliant and inadequate and the officials of the city for not noticing that such an issue was there. Report also further stated that the completion of the structural design was done by an engineer who has no experience for multistory building designing and it was beyond its competence that this CTV building was working. 

The importance of MBIE Guidance which under section 175 of the Building Act 2004 had been introduced post the earthquake for the Canterbury properties, has been acknowledged by all the engineers.[18]  This is only a guideline which if made applicable gives no relief to the person who is under obligation for considering any issue in accordance to the situation of a given case. Technically though this is not a document where there is requirement of compliance, however it is an authoritative and relative guidance document, and which is to be taken in account by the Council in New Zealand for considering applications for building consent.

When there is some kind of defect in the building or the performance is not satisfactory then there is redress that the owners seek to achieve from those people who are responsible. There is an increase in demand and expectations of the owners with respect to the performance that they expect from the buildings. It is assumed by most owners that the buildings that they are buying are health to live in, durable and safe. It is also additionally required by the buildings to have the “green” sticker meaning thereby that the building would be safe at the time of an earthquake.

With time the construction and design requirement of a building are becoming even more complex due to the new systems, processes and products which are being introduced in the market for meeting the expectation of the owner. Due to this there is specialization in various aspect of the building, earthquake engineering being one of them.[19]

Due to the increase in the expectations of the owner there are statutory warranties which have been created additionally for supporting such expectation. The Building Act 2004, Sections 396 to 399 introduced different statutory warranties which are applicable to any building work on a unit of household and are also applicable to the sale of such unit. Though the increasing expectations of the owner are supported by these statutory warranties however these are good only if someone is there who can make good the breach that has been caused and repair the building in a manner so that the standards are met.

The buildings are now becoming extremely complex the number of people who are now involved in the construction and designing of a building have increased. Thus adding to the complexity in determining as to who would be liable. It increases areas that would fall potentially in the people as the responsibility of the designer. A close working of the building practitioners would be required. Other than engineers and architects who are established practitioners there are very few building practitioners who can apply for indemnity insurance and are more likely to be at the receiving end of the claims that are unmeritorious. One essential benefit that personal indemnity insurance has that is allows generally that holder to be able to carry their business and at the same time also defend the claim since the payment of the defence of the claim is made by the insurance. The designer would be held liable for any default in the design that could have been caused due to his negligence and which could have been avoided.

In New Zealand the design standards were introduced after the Napier earthquake in the year 1935.[20] Then in the year 1965 there were developments made in the approach towards design significantly when there was identification of three different earth quake prone zone, which reflected the knowledge that was growing with respect to New Zealand’s seismicity. In 1976 there were more changes that were made followed by the changes in New Zealand with respect to seismicity. In 1976 more importantly there were changes introduced with respect to the requirements to detail and design the structure of the building in a manner so that it protects the vertical elements that are load carrying which is also termed as ‘strong column/weak beam’ or ‘capacity design’ approach.[21]

Further in the years 1984, 1992 and 2005 there were refinements that were made in the 1976 approach. These reflect generally the knowledge increase in the New Zealand’s seismicity, properties, material and buildings’ response to the earthquake tremors. As discussed already there are various buildings which are not meeting the standards which are required now by the newly constructed buildings.[22]  Thus buildings which are covered are not just the brick masonry ones, which are covered already in New Zealand by legislation, but include in particular those that had been built prior to the year 1976. Due to their having been an increase in as to what would be considered as a building that would be earthquake prone the Building Act 2004 was recognized.

The liability that is based on the law of torts and common law are also applicable to the designers.[23]  There are specialized and distinct rules which have been developed by the courts. There has however not been any significant change in the tort based and common law contract liability which is applicable to the building sector over a period of time. Though, there has been an evolution of the rules of common law with the development of the case law, however broadly the rules have not changed for many years. There are a range of statutory provisions that supplement the rules of common-law such as the Consumer Guarantees Act 1993, the Sale of Goods Act 1908 and the Fair Trading Act 1986. Though there are various essential provisions that are contained in this act which are applicable to construction and building work, the liability rules which are applicable most commonly in construction and building cases are those based on contract law and tort and are applied and developed by the judges. Thus, even in the case of New Zealand the responsibility of the designer is more likely to arise under the law of tort and contract law.

There is generally a higher standard of care that is applicable by the courts as compared to the standards of care that was in existence at the time when the work of the building was undertaken. This reflects simply the issue that is there in determination of the conduct’s standard which is after some time that the event has occurred especially in the situation where there is a rapid change in the application, installation, understanding and knowledge in the area. Buildings that were to the best of the knowledge of the designers compliant with the standards of care for a building that is earthquake sake would not be the same if the same is to be understood with the expertise and products that are available today.

It is mostly monetary damages that are imposed as a result of the judicial determinations on the parties who are liable. Often, the designers are not in a position to be able to make a payment of such damages. The value and asset of their business mainly is labor and time. A monetary award that is severe most often than not lead to bankruptcy.

Further where liability is allocated through proceedings of the court it would be process that is lengthy, stressful and costly for everybody who is involved. It is not quite an efficient method of responsibility allocation for the defects in the buildings’ design wherein long before the earthquake the building has been constructed and the court should determine liability in such situation. Further even companies that have limited liability cannot make the director to not be personally responsible if he was involved in the design. It was held in the cases of Trevor Ivory Ltd v Anderson[24]; Morton v Douglas Homes Ltd[25]; and Dicks v Hobson Swan Construction Ltd (in liquidation)[26] that a director would not be protected generally by use of a company that has limited liability who has also undertaken the work of the building.

Conclusively, it can be stated by comparing the law in UK and that in New Zealand that though legislation is important, however it is not sufficient, for determining the responsibility that a designer has towards a building at the time of an earthquake and to warn the owner of any such damages that may occur in the future. Also the legislation which is required needs to something that is very complex and the entire design community has to be involved in it for a long period of time and develop it accordingly. It is only when there are earthquakes that are damaging does it open the window of opportunity for creation of such legislation. Also termed as earthquake engineers, with new and improved designs in the market such designers are required to have additional knowledge and expertise with respect to engineering and designing to protect the building in the case where there is an earthquake. There is also an increased expectation that the owner of the building has on the designers for their specialization hence there is an increased responsibility on the designers. If there is any negligence on the part of the designer and damage that could be foreseen reasonably is caused to the building causing harm to the owner, then the designer would be held liable for the same. The contract contains responsibility clause as to the extent of responsibility of the designer, however in the case where there is no such responsibility clause which has been mentioned specifically the responsibility of the designer shall lie under law of tort. In New Zealand the Christchurch earthquake was a live example of how the engineering company would be held responsible for the negligence of the engineer that caused damage to the building as well the people even years later the construction of the building actually took place. However it is essential to consider in such cases that in event that such a damage takes place years after the building has been constructed then in that case the judge will consider the standard of care that was expected to be taken at the time when it was constructed and not with the standard of care that is expected to followed now as there has been a considerable change and development and there are various new concepts that have been introduced which might not have been in existence when the building had been constructed originally. Thus, it can be stated that a designer may be held responsible for the damage that has been caused to the building even years after the building has been constructed either under the contract law or if the same is not mentioned under the contract then under the law of torts. An comparative analysis of the laws related to responsibility of designers in both New Zealand and the English Law indicate that though the legislations are required however, the same is not sufficient.

References

Circo, Carl J., "When Specialty Designs Cause Building Disasters: Responsibility For Shared Architectural And Engineering Services" (2005) 84 Nebraska Law Review

Cooke, Philip, Law Of Tort (Longman, 2007)

Hori, M, Introduction To Computational Earthquake Engineering (Imperial College Press, 2011)

Lindeburg, Michael R and Majid Baradar, Seismic Design Of Building Structures (Professional Publications, 2001)

Principles Of European Tort Law (Springer, 2005)

Recommendations And Guidelines For Classifying, Interim Securing And Strengthening Earthquake Risk Buildings (New Zealand National Society for Earthquake Engineering, 1985)

Rout V Southern Response Earthquake Services Limited [2013] NZHC 3262 (6 December 2013) (2016) Austlii.edu.au <https://www.austlii.edu.au/cgi-bin/sinodisp/nz/cases/NZHC/2013/3262.html?stem=0&synonyms=0&query=earthquake%20responsibility%20designer>

Bole & Another v Huntsbuild Limited [2009] EWCA Civ 1146

City of Brantford v Kemp & Wallace-Carruthers & Associates Ltd [1960] 23 DLR (2d) 640

Clark-Fitzpatrick, Inc v Long Island RR, [1987] 516 N.E.2d 190, 193

Dicks v Hobson Swan Construction Ltd (in liquidation) [2006] CIV2004-404-1065)

Donoghue v Stevenson [1932] UKHL 100

HOK Sports Ltd (formerly Lobb Partnership Ltd) v Aintree Racecourse Co Ltd [2002] EWHC 3094 (TCC)

London School Board v Northcraft [1889] 2 Hudson's BC (4th Edn) 147, (10th Edn) 174, 192,)

Morton v Douglas Homes Ltd [1984] 2 NZLR 548

Pride Valley Foods Ltd v Hall & Partners (Contract Management) Ltd [2001] 76 Con L.R. 1

Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517

Tyrer v District Auditor of Monmouthshire [1973] 230 Estates Gazette 973

Bayer, Kurt (2016) Nzherald.co.nz <https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514687>

Cantebury Earthquake Royal Commission (2016) Final Report <https://www.parliament.nz/resource/0000242170>

Ministry of Business, Innovation and Employment, Builder And Designer Rights And Obligations(2016) Building Performance <https://www.building.govt.nz/getting-started/your-rights-and-obligations/builder-and-designer-rights-and-obligations/>

Ministry of Business, Innovation and Employment, Earthquake-Prone Buildings (2016) Building Performance <https://www.building.govt.nz/managing-buildings/earthquake-prone-buildings-policy-framework/>

Spence200, Robin, EARTHQUAKE PROTECTION: THE NEED FOR LEGISLATION TO STRENGTHEN HIGH-RISK BUILDINGS (2004) 13th World Conference on Earthquake Engineering https://www.iitk.ac.in/nicee/wcee/article/13_2082.pdf

Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517

Walker, George R., EARTHQUAKE ENGINEERING AND INSURANCE: PAST, PRESENT AND FUTURE (2000) 12 WCEE <https://www.iitk.ac.in/nicee/wcee/article/1472.pdf>

– Earthquakes – Te Ara Encyclopedia Of New Zealand(2016) Teara.govt.nz <https://www.teara.govt.nz/en/earthquakes/page-4>

[1] Donoghue v Stevenson [1932] UKHL 100.

[2] Donoghue v Stevenson [1932] UKHL 100.

[3] London School Board v Northcraft [1889] 2 Hudson's BC (4th Edn) 147, (10th Edn) 174, 192,).

[4] Tyrer v District Auditor of Monmouthshire [1973] 230 Estates Gazette 973.

[5] Pride Valley Foods Ltd v Hall & Partners (Contract Management) Ltd [2001] 76 Con L.R. 1.

[6] HOK Sports Ltd (formerly Lobb Partnership Ltd) v Aintree Racecourse Co Ltd [2002] EWHC 3094 (TCC).

[7] City of Brantford v Kemp & Wallace-Carruthers & Associates Ltd [1960] 23 DLR (2d) 640.

[8] Bole & Another v Huntsbuild Limited [2009] EWCA Civ 1146.

[9] M Hori, Introduction To Computational Earthquake Engineering (Imperial College Press, 2011).

[10] Carl J. Circo, "When Specialty Designs Cause Building Disasters: Responsibility For Shared Architectural And Engineering Services" (2005) 84 Nebraska Law Review.

[11] Philip Cooke, Law Of Tort (Longman, 2007).

[12] Clark-Fitzpatrick, Inc v Long Island RR, [1987] 516 N.E.2d 190, 193.

[13] Clark-Fitzpatrick, Inc v Long Island RR, [1987] 516 N.E.2d 190, 193.

[14] George R. Walker, EARTHQUAKE ENGINEERING AND INSURANCE: PAST, PRESENT AND FUTURE (2000) 12 WCEE <https://www.iitk.ac.in/nicee/wcee/article/1472.pdf>.

[15] Recommendations And Guidelines For Classifying, Interim Securing And Strengthening Earthquake Risk Buildings (New Zealand National Society for Earthquake Engineering, 1985).

[16] Kurt Bayer (2016) Nzherald.co.nz <https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514687>.

[17] Cantebury Earthquake Royal Commission (2016) Final Report <https://www.parliament.nz/resource/0000242170>.

[18] Rout V Southern Response Earthquake Services Limited [2013] NZHC 3262 (6 December 2013) (2016) Austlii.edu.au <https://www.austlii.edu.au/cgi-bin/sinodisp/nz/cases/NZHC/2013/3262.html?stem=0&synonyms=0&query=earthquake%20responsibility%20designer>.

[19] Robin Spence200, EARTHQUAKE PROTECTION: THE NEED FOR LEGISLATION TO STRENGTHEN HIGH-RISK BUILDINGS (2004) 13th World Conference on Earthquake Engineering <https://www.iitk.ac.in/nicee/wcee/article/13_2082.pdf>.

[20] Innovation and Employment Ministry of Business, Builder And Designer Rights And Obligations (2016) Building Performance <https://www.building.govt.nz/getting-started/your-rights-and-obligations/builder-and-designer-rights-and-obligations/>.

[21] Innovation and Employment Ministry of Business, Earthquake-Prone Buildings (2016) Building Performance <https://www.building.govt.nz/managing-buildings/earthquake-prone-buildings-policy-framework/>.

[22] 4. – Earthquakes – Te Ara Encyclopedia Of New Zealand (2016) Teara.govt.nz <https://www.teara.govt.nz/en/earthquakes/page-4>.

[23] Principles Of European Tort Law (Springer, 2005).

[24] Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517.

[25] Morton v Douglas Homes Ltd [1984] 2 NZLR 548.

[26] Dicks v Hobson Swan Construction Ltd (in liquidation) [2006] CIV2004-404-1065).

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