KAY V DICKSON LONERGAN LTD AND ORS HC AK CIV 2005-483-201

KAY V DICKSON LONERGAN LTD AND ORS HC AK CIV 2005-483-201

The High Court upheld the adjudicator's strike out of claims relating to the original external plaster cladding because the appellants were aware or ought to have been aware of both the damage and its cause by January 1995 (receipt of BRANZ report and contemporaneous communications), so the Hamlin reasonable discoverability test meant the cause of action had accrued and limitation ran; there was no evidence of fraudulent concealment or estoppel to postpone limitation; claims based on other defects were not plainly time-barred and required factual resolution at hearing.

Citation
openlaw-94569241_1018_4f10_b8d0_c8b3610cfd9e.pdf
Parties
Appellants: John Hendy Kay and Victoria Kay; First Respondent: Dickson Lonergan Ltd; Second Respondent: Wanganui District Council; Third Respondent: Phil Durston Ltd; Fourth Respondent: Phil Durston; Fifth Respondent: Building Research Association of New Zealand; Sixth Respondent: J M Ten Broeke
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2006
Procedural Posture
Adjudication Appeal Under Weathertight Homes Resolution Services Act 2002 / High Court Judgment on Appeal From Adjudicator Strike Out Decision
Outcome
Appeal and cross-appeal dismissed
Legal Topics
Weathertight Homes Resolution Services Act 2002, Limitation Act 1950, Strike Out, Estoppel, Fraudulent Concealment, Reasonable Discoverability, Adjudicator Powers
Construction Law Tort (negligence) Limitation Law Administrative Law Civil Procedure Weathertight Homes Resolution Services Act 2002 Limitation Act 1950 Strike Out +4 more

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Parties

John Hendy Kay and Victoria Kay

Appellants

Dickson Lonergan Ltd

First Respondent

Wanganui District Council

Second Respondent

Phil Durston Ltd

Third Respondent

Phil Durston

Fourth Respondent

Building Research Association of New Zealand

Fifth Respondent

J M Ten Broeke

Sixth Respondent

Procedural Posture

Adjudication Appeal Under Weathertight Homes Resolution Services Act 2002 / High Court Judgment on Appeal From Adjudicator Strike Out Decision

Legal Issues

  1. 1 Whether claims relating to plaster cladding were time-barred under the Limitation Act 1950
  2. 2 Application of the Hamlin reasonable discoverability test to accrual of cause of action
  3. 3 Whether the adjudicator properly exercised strike out/removal powers under the 2002 Act

Ratio Decidendi

The High Court upheld the adjudicator's strike out of claims relating to the original external plaster cladding because the appellants were aware or ought to have been aware of both the damage and its cause by January 1995 (receipt of BRANZ report and contemporaneous communications), so the Hamlin reasonable discoverability test meant the cause of action had accrued and limitation ran; there was no evidence of fraudulent concealment or estoppel to postpone limitation; claims based on other defects were not plainly time-barred and required factual resolution at hearing.

Court Disposition

Appeal and cross-appeal dismissed

Orders

  • Appeal dismissed
  • Cross-appeal dismissed