KELLS & ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2008-404-1812

KELLS & ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2008-404-1812

Filing an application for an assessor's report under the Weathertight Homes Act within the ten-year period operates to stop time running under the Building Act long-stop as to all potential parties; consequently joinder of additional parties after that filing is not barred by s393(2). The Tribunal's refusal to strike out the Kells was within its discretion and not Wednesbury unreasonable. Interlocutory refusals that are not final determinations are not appealable and judicial review is discretionary and should not be used to circumvent the Act's appeal scheme; both the appeal and review were dismissed.

Citation
openlaw-821a2c7c_1255_42d2_80d9_263566a88537.pdf
Parties
Appellant/plaintiff: Martin Kenneth Kells; Appellant/plaintiff: Craig William Kells; First Respondent/first Defendant: Auckland City Council; Second Respondent/second Defendant: Louis Bernard Lipschitz; Second Respondent/second Defendant: Veroslava Lipschitz; Third Respondent/third Defendant: Rodney Graham Pratt; Fourth Respondent/fourth Defendant: Geoffrey Thomas Ward; Fifth Defendant: Weathertight Homes Tribunal
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 May 2008
Procedural Posture
Weathertight Homes Act Adjudication With Appeal and Review of Tribunal Interlocutory Joinder Decision / Hearing on Appeal and Judicial Review of Tribunal Procedural Order Declining to Strike Out (may 2008)
Outcome
Appeal and judicial review dismissed
Legal Topics
Weathertight Homes Resolution Services Act 2006, Building Act 2004 S393 Long Stop Limitation, Joinder of Parties, Appealability of Interlocutory Orders, Judicial Review, Tribunal Procedure
Administrative Law Building and Construction Law Statutory Interpretation Civil Procedure Limitations Law Weathertight Homes Resolution Services Act 2006 Building Act 2004 S393 Long Stop Limitation Joinder of Parties +3 more

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Parties

Martin Kenneth Kells

Appellant/plaintiff

Craig William Kells

Appellant/plaintiff

Auckland City Council

First Respondent/first Defendant

Louis Bernard Lipschitz

Second Respondent/second Defendant

Veroslava Lipschitz

Second Respondent/second Defendant

Rodney Graham Pratt

Third Respondent/third Defendant

Geoffrey Thomas Ward

Fourth Respondent/fourth Defendant

Weathertight Homes Tribunal

Fifth Defendant

Procedural Posture

Weathertight Homes Act Adjudication With Appeal and Review of Tribunal Interlocutory Joinder Decision / Hearing on Appeal and Judicial Review of Tribunal Procedural Order Declining to Strike Out (may 2008)

Legal Issues

  1. 1 Whether the ten-year long-stop in s393(2) Building Act bars joinder of parties after the ten-year period
  2. 2 Whether the Council's delay in applying to join the Kells made joinder unreasonable or Wednesbury unlawful
  3. 3 Whether interlocutory refusal to strike out is appealable or subject to judicial review and whether review should be granted

Ratio Decidendi

Filing an application for an assessor's report under the Weathertight Homes Act within the ten-year period operates to stop time running under the Building Act long-stop as to all potential parties; consequently joinder of additional parties after that filing is not barred by s393(2). The Tribunal's refusal to strike out the Kells was within its discretion and not Wednesbury unreasonable. Interlocutory refusals that are not final determinations are not appealable and judicial review is discretionary and should not be used to circumvent the Act's appeal scheme; both the appeal and review were dismissed.

Court Disposition

Appeal and judicial review dismissed

Orders

  • Appeal dismissed
  • Application for judicial review dismissed