BODY CORPORATE NO 200012 V EDEN VILLAGE LTD (IN LIQUIDATION) HC AK CIV-2006-404-1931

BODY CORPORATE NO 200012 V EDEN VILLAGE LTD (IN LIQUIDATION) HC AK CIV-2006-404-1931

The strike out application was declined because the respondents have put forward reasonably arguable factual and legal grounds that parts of the development may be separately identifiable products (not necessarily the head contractor's product), the meaning and effect of the products exclusion is ambiguous in this context, and the insuring wording ‘in respect of’ has wide import such that consequential losses, diminution in value and general damages are arguably within cover. Given the developing law and contested facts the high threshold for summary dismissal was not met and the claims must proceed to trial.

Citation
openlaw-1563875b_9fc0_4384_8cc1_0938fcc0a641.pdf
Parties
First Plaintiff: BODY CORPORATE NO 200012; Second Plaintiffs: R A PERRY AND M L PERRY AND OTHERS; First Defendant: EDEN VILLAGE LTD (IN LIQUIDATION); Second Defendant (struck Out): EDEN COMMERCIAL LTD; Third Defendant: MALTBY PROJECT MANAGEMENT LTD (FORMERLY MPM PROJECTS LTD); Fourth Defendant: AUCKLAND CITY COUNCIL; Fifth Defendant (struck Out): VERO INSURANCE NEW ZEALAND LTD; Sixth Defendant: R G PRIEST; Seventh Defendant: CADABRA APPLIED COMPUTER GRAPHICS (NZ) LTD; Eighth Defendant: A J DOHERTY; Ninth Defendant: JAMES HARDIE NEW ZEALAND LTD; Tenth Defendant: METALCRAFT INDUSTRIES LTD; Eleventh Defendant (applicant): QBE INSURANCE (INTERNATIONAL) LTD; Twelfth Defendant (struck Out): ALLIANZ NEW ZEALAND LTD; Thirteenth Defendant: LUMLEY GENERAL INSURANCE (N.Z.) LTD; Fourteenth Defendant: A J GAPES; Fifteenth Defendant: MALTBY & PARTNERS LTD (NOW CALLED M&S 1929 LTD); Third Party: THE AUCKLAND RUBBER ROOFING CO LTD (IN LIQUIDATION); Second Third Party: VERO INSURANCE NEW ZEALAND LIMITED; Third Third Party: VERO INSURANCE NEW ZEALAND LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 November 2011
Procedural Posture
Civil Leaky Building / Insurance Indemnity / Third Party Contribution / Interlocutory Strike Out Application Under High Court Rules R 15.1(1)(a)
Outcome
Strike out application declined
Legal Topics
Policy Construction, Products Exclusion, Strike Out / Summary Dismissal, Third Party Indemnity and Contribution, Consequential Loss and Diminution in Value
Insurance Law Contract Law Tort (negligence) Civil Procedure Property Law Building Defects Policy Construction Products Exclusion Strike Out / Summary Dismissal +2 more

Case Brief

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Parties

BODY CORPORATE NO 200012

First Plaintiff

R A PERRY AND M L PERRY AND OTHERS

Second Plaintiffs

EDEN VILLAGE LTD (IN LIQUIDATION)

First Defendant

EDEN COMMERCIAL LTD

Second Defendant (struck Out)

MALTBY PROJECT MANAGEMENT LTD (FORMERLY MPM PROJECTS LTD)

Third Defendant

AUCKLAND CITY COUNCIL

Fourth Defendant

VERO INSURANCE NEW ZEALAND LTD

Fifth Defendant (struck Out)

R G PRIEST

Sixth Defendant

CADABRA APPLIED COMPUTER GRAPHICS (NZ) LTD

Seventh Defendant

A J DOHERTY

Eighth Defendant

JAMES HARDIE NEW ZEALAND LTD

Ninth Defendant

METALCRAFT INDUSTRIES LTD

Tenth Defendant

QBE INSURANCE (INTERNATIONAL) LTD

Eleventh Defendant (applicant)

ALLIANZ NEW ZEALAND LTD

Twelfth Defendant (struck Out)

LUMLEY GENERAL INSURANCE (N.Z.) LTD

Thirteenth Defendant

A J GAPES

Fourteenth Defendant

MALTBY & PARTNERS LTD (NOW CALLED M&S 1929 LTD)

Fifteenth Defendant

THE AUCKLAND RUBBER ROOFING CO LTD (IN LIQUIDATION)

Third Party

VERO INSURANCE NEW ZEALAND LIMITED

Second Third Party

VERO INSURANCE NEW ZEALAND LIMITED

Third Third Party

Procedural Posture

Civil Leaky Building / Insurance Indemnity / Third Party Contribution / Interlocutory Strike Out Application Under High Court Rules R 15.1(1)(a)

Legal Issues

  1. 1 Whether the whole Eden 1 complex constitutes the Insured's Product for the purposes of the policy excluding cover for Property Damage to the Insured's Products
  2. 2 Whether exclusion clause (d) excluding Property Damage to the Insured's Products operates to exclude consequential losses, diminution in value and general damages claimed by respondents
  3. 3 Whether general damages for mental distress fall within the insuring clause and are excluded by clause (d) if property damage is excluded

Ratio Decidendi

The strike out application was declined because the respondents have put forward reasonably arguable factual and legal grounds that parts of the development may be separately identifiable products (not necessarily the head contractor's product), the meaning and effect of the products exclusion is ambiguous in this context, and the insuring wording ‘in respect of’ has wide import such that consequential losses, diminution in value and general damages are arguably within cover. Given the developing law and contested facts the high threshold for summary dismissal was not met and the claims must proceed to trial.

Court Disposition

Strike out application declined

Orders

  • Strike out application by QBE Insurance (International) Ltd declined
  • Costs reserved