BODY CORPORATE 351522 V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CIV-2012-425-000341

BODY CORPORATE 351522 V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CIV-2012-425-000341

Inspection and invasive testing order was granted under r 9.34 because testing was relevant and necessary; testing and monitoring of five identified units authorised from 25 March 2013 to conclude no later than 31 October 2013 with specified protocols (monthly data disclosure, indemnity, telephone line, removal of equipment); the court required plaintiffs to provide specified further and better particulars of defects, breaches, damage and quantum sufficient to inform defendants' preparation; experts were directed to confer and additional expert evidence allowed; trial allocated 25 November 2013 to balance testing needs and plaintiffs' prejudice from delay.

Citation
openlaw-b237cbd7_7b78_44fe_b0da_1786a83dd363.pdf
Parties
First Plaintiff: Body Corporate 351522; Second Plaintiff: David Victor Curran; Second Plaintiff: Kimnancy Curran; Second Plaintiff: Circle Property Investments Limited; Second Plaintiff: Anup Nathu; Second Plaintiff: Sadhana Nathu; Second Plaintiff: Novacorp Limited; Second Plaintiff: Lynette Janice Donaldson; Second Plaintiff: Jennifer Christine Hay; Second Plaintiff: Stephen Alexander Greer; Second Plaintiff: Bruce Donn McNally; Second Plaintiff: Mattrix Investments Limited; Second Plaintiff: Hamish Ian Munro; Second Plaintiff: Milly Myloi Sin; Second Plaintiff: Haybu Limited; First Defendant: Queenstown Lakes District Council; Second Defendant: Andrew John Stevens; Third Defendant: Mark Lawrence Hillary; Fourth Defendant: B F Whitham Limited; Fifth Defendant: Phillip Stanley Morrison
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 March 2013
Procedural Posture
Civil Building Defects / Weathertightness Claim / Interlocutory Applications (inspection/testing and Further and Better Particulars); Pre Trial Allocation
Outcome
Council's application for inspection and testing granted on terms; plaintiffs' application to refuse particulars largely rejected and plaintiffs ordered to provide specified further and better particulars; trial allocated
Legal Topics
Weathertightness, Inspection and Sampling Orders, Further and Better Particulars, Expert Witness Admissibility and Conferencing, Trial Allocation
Building Law Tort (negligence) Civil Procedure Evidence (expert) Weathertightness Inspection and Sampling Orders Further and Better Particulars Expert Witness Admissibility and Conferencing +1 more

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Parties

Body Corporate 351522

First Plaintiff

David Victor Curran

Second Plaintiff

Kimnancy Curran

Second Plaintiff

Circle Property Investments Limited

Second Plaintiff

Anup Nathu

Second Plaintiff

Sadhana Nathu

Second Plaintiff

Novacorp Limited

Second Plaintiff

Lynette Janice Donaldson

Second Plaintiff

Jennifer Christine Hay

Second Plaintiff

Stephen Alexander Greer

Second Plaintiff

Bruce Donn McNally

Second Plaintiff

Mattrix Investments Limited

Second Plaintiff

Hamish Ian Munro

Second Plaintiff

Milly Myloi Sin

Second Plaintiff

Haybu Limited

Second Plaintiff

Queenstown Lakes District Council

First Defendant

Andrew John Stevens

Second Defendant

Mark Lawrence Hillary

Third Defendant

B F Whitham Limited

Fourth Defendant

Phillip Stanley Morrison

Fifth Defendant

Procedural Posture

Civil Building Defects / Weathertightness Claim / Interlocutory Applications (inspection/testing and Further and Better Particulars); Pre Trial Allocation

Legal Issues

  1. 1 Whether the Council is entitled to an inspection and invasive testing order and on what terms
  2. 2 Appropriate duration and scope of environmental/condensation testing
  3. 3 Admissibility and scope of expert evidence and need for experts to confer

Ratio Decidendi

Inspection and invasive testing order was granted under r 9.34 because testing was relevant and necessary; testing and monitoring of five identified units authorised from 25 March 2013 to conclude no later than 31 October 2013 with specified protocols (monthly data disclosure, indemnity, telephone line, removal of equipment); the court required plaintiffs to provide specified further and better particulars of defects, breaches, damage and quantum sufficient to inform defendants' preparation; experts were directed to confer and additional expert evidence allowed; trial allocated 25 November 2013 to balance testing needs and plaintiffs' prejudice from delay.

Court Disposition

Council's application for inspection and testing granted on terms; plaintiffs' application to refuse particulars largely rejected and plaintiffs ordered to provide specified further and better particulars; trial allocated

Orders

  • First defendant (Council) permitted to inspect and carry out observation, invasive testing, sampling and to place monitoring devices in five specified units (Unit 6A/6B top floor; Unit 1; one south-side unit (2A/3A/4A); one north-side unit (2B/3B/4B/5B); Unit 5A)
  • Testing and monitoring to commence access from 25 March 2013 and all testing, monitoring and removal of introduced material to be completed no later than 31 October 2013