WONG & HO V THE WEATHERTIGHT HOMES TRIBUNAL AND ORS HC AK CIV-2010-404-001751

WONG & HO V THE WEATHERTIGHT HOMES TRIBUNAL AND ORS HC AK CIV-2010-404-001751

The Tribunal applied the wrong evidential/test standard by requiring cogent evidence against respondents rather than treating the pleaded facts as true; given undisputed documentary matters (joint ownership, building consent naming owners/applicants, builder recorded as AP Dougherty Ltd, site visits and sale to...

Source-derived case information.

Citation
openlaw-9047480f_903b_4762_b7f9_613af0313cd4.pdf
Parties
Applicants/appellants: Cho Chueng Wong & Yuet Fong Ho; First Respondent: Weathertight Homes Tribunal; Second Respondent: Auckland City Council; Third Respondent: John William Dougherty; Fourth Respondent: Anthony Paul Dougherty; Fifth Respondent: Ken MacMillan; Sixth Respondent: AP Dougherty Limited; Seventh Respondent: Renelle Barbara Gronert (Jordan)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 October 2010
Procedural Posture
Appeal Under Weathertight Homes Resolution Services Act 2006 / High Court Appeal From Weathertight Homes Tribunal Decision on Removal/strike Out; Judgment on Appeal Delivered
Outcome
Appeal allowed; order removing respondents set aside; respondents to remain parties to the Weathertight Homes Tribunal proceeding
Legal Topics
Weathertight Claims, Strike Out/removal of Parties, Developer Duty of Care, Limitation Period, Appropriate Procedure for Review Vs Appeal
Property Law Tort Contract Civil Procedure Administrative Law Weathertight Claims Strike Out/removal of Parties Developer Duty of Care +2 more

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Parties

Cho Chueng Wong & Yuet Fong Ho

Applicants/appellants

Weathertight Homes Tribunal

First Respondent

Auckland City Council

Second Respondent

John William Dougherty

Third Respondent

Anthony Paul Dougherty

Fourth Respondent

Ken MacMillan

Fifth Respondent

AP Dougherty Limited

Sixth Respondent

Renelle Barbara Gronert (Jordan)

Seventh Respondent

Procedural Posture

Appeal Under Weathertight Homes Resolution Services Act 2006 / High Court Appeal From Weathertight Homes Tribunal Decision on Removal/strike Out; Judgment on Appeal Delivered

Legal Issues

  1. 1 Whether strike-out/removal under s112 WHRS Act was lawfully exercised
  2. 2 Whether respondents were developers attracting a non-delegable duty of care
  3. 3 Whether the Tribunal applied the correct evidential/test standard on a strike-out application

Ratio Decidendi

The Tribunal applied the wrong evidential/test standard by requiring cogent evidence against respondents rather than treating the pleaded facts as true; given undisputed documentary matters (joint ownership, building consent naming owners/applicants, builder recorded as AP Dougherty Ltd, site visits and sale to appellants) the allegation respondents were developers was at least arguable and could not be struck out without a hearing; consequently the removal order was set aside.

Court Disposition

Appeal allowed; order removing respondents set aside; respondents to remain parties to the Weathertight Homes Tribunal proceeding

Orders

  • Order removing the respondents from the proceedings set aside
  • Respondents to remain as parties to the proceeding before the Weathertight Homes Tribunal