And while a judge found their builder liable for
repair costs for a substandard roof, the couple must now pay him more than $130,000 after they were successfully sued for refusing to pay their bills.
Retirees Anne and Rodney Jess said they have already spent hundreds of thousands of dollars on the building project and about $200,000 on expert witnesses and legal fees.
They feel justice has not been done and have written to Justice Minister Paul Goldsmith asking for the court judgment against them to be quashed and compensation awarded for their ordeal.
“Our life has just been consumed by this terrible situation. The stress has been phenomenal,” Anne Jess, a trained lawyer, told the Herald.
“I was presented in court as a person who would tell lies and I would never do that.”
Anne Jess says her Martin Ave home is on one of Remuera’s best streets. Photo / Michael Craig
However, the builder, Mark Van Den Anker, has defended his work and blamed Anne for the costly legal battle.
He said his firm had been happy to finish the renovation work and make necessary repairs to the roof before the couple withheld payment, forcing him to cancel the contract and launch proceedings.
Van Den Anker, who has spent more than $300,000 on the court action, said there were no winners. He hoped the case provided a salient lesson to his former client.
“All she had to do was pay the bills and we would have carried on.”
Timeline of a renovation ‘nightmare’
In 2017, the couple commissioned another builder to convert the garage at their five-bedroom, three-bathroom Martin Ave home into a one-bedroom loft.
They were quoted $287,000 for the renovation and agreed to go ahead.
But the workmanship was defective and the addition had to be partly demolished after $100,000 had already been spent.
Rodney and Anne Jess have been locked in a six-year legal battle and spent more than $900,000 over what was supposed to be a $300,000 renovation at their Remuera home. Photo / Michael Craig
The couple then commissioned Van Den Anker Construction (VDA) and work recommenced in April 2018.
But seven years later they are embroiled in a bitter legal dispute with VDA after it sued them for non-payment of nearly $50,000 in progress fees.
The couple had travelled overseas for several months during the build and were billed for work to “close in” the renovation while they were away.
They refused to pay three invoices, claiming there had been an “ancillary agreement” that no work occurred while they were abroad – a claim disputed by VDA.
When they returned in September 2018 the couple took issue with the roof, which was completed by a subcontractor.
“The roof was an absolute disgrace,” Anne told the Herald.
VDA cancelled the contract in November that year and commenced proceedings in the District Court.
The couple filed a counterclaim for alleged defective building work and alleged over-charging, and the case went to trial in February 2022.
The couple spent $30,000 on an expert report highlighting what they alleged were a litany of issues with carpentry and roofing defects.
Judge awards builder $220k in damages, costs
However, Judge Mary Beth Sharp dismissed the couple’s counterclaim entirely and ruled in favour of VDA, awarding the company about $220,000 in damages, interest and costs.
The January 2023 decision says that while the roof required remedial work, VDA was entitled to cancel the contract and the company could therefore not be sued for the cost of repairs.
The couple used the state of the roof “as an excuse” not to pay outstanding invoices, the judge found.
Many of the issues they highlighted were not “defects” but unfinished work that couldn‘t be completed by the builder because of the termination of the contract.
By failing to pay, the couple had “waived their contractual right to have any incomplete or defective works completed or remediated”.
Judge Sharp said she had sympathy for Anne’s predicament given their previous experience with poor workmanship, describing her as “once bitten, twice shy”.
The couple commissioned builders to renovate the space above their Remuera garage into a one-bedroom, self-contained loft. Photo / Michael Craig
But Anne had tried to project manage a difficult renovation “without the necessary knowledge or skill”, the judge said.
“Had she paid the progress claims on time and allowed VDA back on site to finish the works, I do not doubt that the project would have been completed appropriately and in conformity with the contract.”
The couple appealed the decision to the High Court claiming breach of contract by VDA because of deficient workmanship.
A December 2023 decision by Justice Mary Peters ruled the District Court judge had “erred” in dismissing the couple’s counterclaim. Justice Peters found the loft roof was defective and VDA was contractually liable for repair costs – awarding the couple nearly $30,000.
The decision dismissed the couple’s other claims relating to defective carpentry and over-charging.
‘We want our life back’
However, the legal battle didn‘t end there.
VDA then sought leave to take the case to the Court of Appeal, but was twice knocked back. The most recent decision last December found the sum in dispute was “relatively modest” and related to renovation work carried out six years prior.
The case did not warrant the cost of a third court proceeding and further delays, the court ruled.
“A disproportionate amount of time and money has already been spent on this dispute.”
In addition to the court action, VDA secured charging orders against the title of the Jesses’ home, preventing them from selling it until the legal stoush was resolved.
Anne told the Herald this had caused immense stress and prevented them from moving on while the court battle dragged out.
“We couldn‘t sell it, we couldn‘t do anything. We just want our life back.”
How two letters cost the Jesses $16,500
Since the last Court of Appeal decision, the parties’ lawyers have been negotiating a final settlement package, weighing their respective litigation successes, lawyers’ costs and mounting interest.
It was agreed in AP that the couple would pay VDA $120,000 to settle the matter once and for all.
However, VDA’s lawyers then claimed the settlement had been “repudiated” after Anne fired off two letters accusing Van Den Anker of misleading statements and other claims the Herald has chosen not to publish.
The amount sought then jumped to $145,000 before the parties agreed to $136,500 in May.
Rodney and Anne Jess claim justice has not been done. They have written to the Justice Minister asking for the judgment against them to be quashed. Photo / Michael Craig
Anne said her two letters, sent in a fit of frustration, effectively cost her and her husband an extra $16,500.
What was supposed to be a $300,000 addition to their home had now ballooned to more than $900,000 in building costs, legal fees, expert reports, settlement proceeds and interest, she said.
Anne said the house was in a “high value area” and on “one of the best streets in Remuera”.
The renovation should have been straightforward but had morphed into a stressful nightmare.
“It’s horrific that we had to pay an extra $600,000 to get the build that we wanted. It’s disgusting. This case is a disgraceful scenario.”
‘Just pay your bills’
Van Den Anker admitted he was “p***ed off” after receiving the letters. The extra settlement demands were to pay for new charging orders he was forced to lodge against the couple’s house.
He said his firm had a good reputation and was known for high-quality renovation work in Auckland’s most affluent suburbs.
The court case had cost him a lot financially but was important to take on principle.
Some builders were forced under if their clients refused to pay invoices. Others simply took the loss on the chin because of the “shocking” cost of litigating non-payment through the courts, Van Den Anker said.
The whole exercise could have been avoided if the Jesses had honoured their progress payments and allowed the work to be completed, he said.
“She just didn‘t want to pay her bills.”
Lane Nichols is a senior journalist and Auckland desk editor for the New Zealand Herald with more than 20 years’ experience in the industry.