BODY CORPORATE NO. 338356 & ORS v ENDEAN & ORS [2014] NZHC 2644

BODY CORPORATE NO. 338356 & ORS v ENDEAN & ORS [2014] NZHC 2644

The proposed fifth amended statement of claim did not introduce a fresh cause of action; the additional remedial particulars were consequential upon defects and damage already pleaded in the fourth amended statement of claim and therefore r7.77(2) was not engaged; on discretionary grounds under r7.7 the interests of justice weighed in favour of granting leave to file the amendment (subject to agreed deletions), with costs to plaintiffs on a 2B scale.

Citation
[2014] NZHC 2644
Parties
First Plaintiff: Body Corporate No. 338356 & Ors; Second Plaintiffs: Daniel James Halaska and Others; First Defendant: William Arthur Endean; First Defendant: John Edward Endean; First Defendant: Christine Heather Endean; Second Defendant: Clark Brown Architects Limited; Fourth Defendant and First Third Party: James Hardie New Zealand Limited; Sixth Defendant: Graham Henry William White; Third Third Party: Bostik (Australia) Pty Limited; Fourth Third Party: Bondor New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 October 2014
Procedural Posture
Civil Building Defects Litigation / Interlocutory Application for Leave to File Fifth Amended Statement of Claim After Close of Pleadings (pre Trial)
Outcome
Leave granted to file fifth amended statement of claim subject to agreed deletions; costs to plaintiffs on a 2B scale; costs timetabling directions given
Legal Topics
Amendment of Pleadings, Statute‑barred Causes of Action, Building Defects and Remedial Scope, Non‑delegable Duties, Leave to Amend Under High Court Rules R7.7 and R7.77
Civil Procedure Construction Law Tort Law Contract Law Limitation Law Amendment of Pleadings Statute‑barred Causes of Action Building Defects and Remedial Scope +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Body Corporate No. 338356 & Ors

First Plaintiff

Daniel James Halaska and Others

Second Plaintiffs

William Arthur Endean

First Defendant

John Edward Endean

First Defendant

Christine Heather Endean

First Defendant

Clark Brown Architects Limited

Second Defendant

James Hardie New Zealand Limited

Fourth Defendant and First Third Party

Graham Henry William White

Sixth Defendant

Bostik (Australia) Pty Limited

Third Third Party

Bondor New Zealand Limited

Fourth Third Party

Procedural Posture

Civil Building Defects Litigation / Interlocutory Application for Leave to File Fifth Amended Statement of Claim After Close of Pleadings (pre Trial)

Legal Issues

  1. 1 Whether the proposed fifth amended statement of claim introduces a fresh cause(s) of action that is statute barred
  2. 2 Whether, if not fresh, leave should nevertheless be refused under r7.7 because of prejudice, delay or expanded issues
  3. 3 Whether the remedial works claimed (full re‑clad, replacement of windows/doors, treatment of structural steel, replacement of fire‑rated linings) are consequential on previously pleaded defects or constitute new causes of action

Ratio Decidendi

The proposed fifth amended statement of claim did not introduce a fresh cause of action; the additional remedial particulars were consequential upon defects and damage already pleaded in the fourth amended statement of claim and therefore r7.77(2) was not engaged; on discretionary grounds under r7.7 the interests of justice weighed in favour of granting leave to file the amendment (subject to agreed deletions), with costs to plaintiffs on a 2B scale.

Court Disposition

Leave granted to file fifth amended statement of claim subject to agreed deletions; costs to plaintiffs on a 2B scale; costs timetabling directions given