NATHAN, TAIT AND CURTIS AND ANOR V SMITH SMITH AND ORS HC AK CIV 2007-404-000253

NATHAN, TAIT AND CURTIS AND ANOR V SMITH SMITH AND ORS HC AK CIV 2007-404-000253

The Court found there had been a breakdown in communication and confusion affecting the defendant's expert access such that formal inspection and preservation orders were required; the application was granted with clarification to avoid duplication, a two working day notice requirement was imposed, and no order as to costs was made because of the parties' cooperation and the circumstances that produced the difficulty.

Citation
openlaw-c2439c59_6562_40b4_b674_8e73a641c7b2.pdf
Parties
First Plaintiff: Miles Hunter Nathan; First Plaintiff: James Denis Tait; First Plaintiff: Michael Gerard Curtis; Second Plaintiff: Miles Hunter Nathan; Second Plaintiff: Mary Nathan; First Defendant: Geoffrey Stephen Smith; First Defendant: Carolyn Smith; Second Defendant: Scott Bernard Macbeth; Third Defendant: Sumich Architects Limited; Fourth Defendant: Matthew Robert Chaplin; Fifth Defendant: Ronald William Robinson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 January 2009
Procedural Posture
Civil: Building / Leaky Home / Interim Application for Inspection and Preservation Orders (ex Parte on Pickwick Basis)
Outcome
Application by first defendants for inspection and preservation orders granted in part; formal orders made with specified notice requirements; no order for costs (parties to bear their own costs); leave to vary reserved.
Legal Topics
Inspection Orders, Preservation Orders, Expert Access to Site, Pickwick Ex Parte Procedure, Costs on Interlocutory Application
Civil Property Law Building and Construction Civil Procedure Evidence Inspection Orders Preservation Orders Expert Access to Site +2 more

Case Brief

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Parties

Miles Hunter Nathan

First Plaintiff

James Denis Tait

First Plaintiff

Michael Gerard Curtis

First Plaintiff

Miles Hunter Nathan

Second Plaintiff

Mary Nathan

Second Plaintiff

Geoffrey Stephen Smith

First Defendant

Carolyn Smith

First Defendant

Scott Bernard Macbeth

Second Defendant

Sumich Architects Limited

Third Defendant

Matthew Robert Chaplin

Fourth Defendant

Ronald William Robinson

Fifth Defendant

Procedural Posture

Civil: Building / Leaky Home / Interim Application for Inspection and Preservation Orders (ex Parte on Pickwick Basis)

Legal Issues

  1. 1 Whether inspection and preservation orders should be made to permit the first defendant's expert access to the property to obtain evidence
  2. 2 What notice period is appropriate for such site access
  3. 3 Whether formal court orders are necessary given the parties' cooperation to date

Ratio Decidendi

The Court found there had been a breakdown in communication and confusion affecting the defendant's expert access such that formal inspection and preservation orders were required; the application was granted with clarification to avoid duplication, a two working day notice requirement was imposed, and no order as to costs was made because of the parties' cooperation and the circumstances that produced the difficulty.

Court Disposition

Application by first defendants for inspection and preservation orders granted in part; formal orders made with specified notice requirements; no order for costs (parties to bear their own costs); leave to vary reserved.

Orders

  • Orders in accordance with the application filed under rr 322 and 331 (paragraphs 1 and 2 of the application)
  • Order in accordance with paragraph 3 of the application with addition excluding the works referred to in paragraph 1