BECA CARTER HOLLINGS & FERNER LIMITED v WELLINGTON CITY COUNCIL [2022] NZCA 624 _x000b_

BECA CARTER HOLLINGS & FERNER LIMITED v WELLINGTON CITY COUNCIL [2022] NZCA 624[14 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA460/2021[2022] NZCA 624BETWEEN BECA CARTER HOLLINGS & FERNERLIMITEDAppellantAND WELLINGTON CITY COUNCILRespondentHearing: 23 and 24 May 2022 (further submissions received 25 May 2022)Court: Miller, Clifford and Katz JJCounsel: M G Ring KC, J A McKay and K C Grant for AppellantL J Taylor KC, B J Sanders and B A Mathers for RespondentJudgment: 14 December 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a complex appeal on a band Bbasis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Table of ContentsParagraph No.Introduction [1]The limitation issue [11]Background [11]The High Court decision [17]The appeal [21]Analysis [26]Overview [26]Statutory interpretation principles [51]Section 17(1)(c) of the LRA 1936 [59]Section 14 of the LA 1950 [65]Case law [76]Report 6 [83]Section 91 of the BA 1991 [90]Hamlin and discoverability [100]Further Law Commission reports and s 393 of the BA 2004 [107]The 2007 Update Report and s 34 of the LA 2010 [114]Our assessment of the legislative history [122]Previous High Court decisions [126]Klinac [127]Dustin [132]James Hardie [144]Our conclusion on the limitation issue [146]The ancillary claims argument [155]The claims in tort — the summary judgment issue [165]Result [177]Introduction[1] In October 2006 CentrePort Ltd, the operator of the port at Wellington,contracted with Bank of New Zealand (BNZ) to construct a building (the Building) onland owned by it on Waterloo Quay. CentrePort in turn contracted with Beca CarterHollings & Ferner Ltd (Beca) for engineering and design consultancy services, andwith Fletcher Construction Company Ltd for design and construction services.[2] Following construction of the Building, and pursuant to its contractualarrangements with CentrePort, BNZ entered into a long-term lease of the Building inFebruary 2011. The Building suffered irreparable damage in the Kaikōura earthquakeof November 2016. BNZ was never able to return to the Building thereafter.The Building was ultimately determined uneconomic to repair and has now beendeconstructed.[3] On 2 August 2019 BNZ filed proceedings against the Wellington City Council(the Council) seeking damages of some $101 million to recover losses for businessinterruption and property damage, and related fees, caused by the effects of thatearthquake on the Building. BNZ alleges the Council is liable to it in negligence as aresult of the circumstances in which the Council issued the building consents and codecompliance certificates (CCCs) for the Building's substructure and superstructure.BNZ's claim focuses on negligence in the design of the superstructure.[4] The Council denies liability in negligence, has pleaded standard limitationdefences under the Limitation Acts 1950 and 2010 (the LA 1950 and the LA 2010respectively), and the 10-year "long-stop"1 limitation under the Building Act 2004(the BA 2004), and has filed third party proceedings against Beca:(a) under the Law Reform Act 1936 (the LRA 1936), for contribution fromBeca as a joint tortfeasor with the Council if, contrary to the Council'sdenial, it is found liable to BNZ;(b) in tort, for negligence, alleging that Beca breached the duty of care itowed the Council on a continuing basis, by preparing design documentsotherwise than in conformance with the Building Code and/orNew Zealand Standards, by representing negligently to the contraryand by failing to correct those errors and advise the Council of theirexistence; and(c) in tort, for negligent misstatement, for misrepresentingnon-conforming design documents to be conforming, knowingthe Council would rely on those documents when issuing buildingconsents and CCCs relating to the Building.1 A "long-stop" limitation imposes a complete bar on the commencement of legal proceedings.Such a limitation restricts the effect of provisions which allow standard limitation periods to beextended in certain circumstances.[5] Beca denies any liability to the Council. It says: (i) it did not breach its dutyof care to BNZ and so is not a joint tortfeasor with the Council; (ii) to the extent itowed duties of care to the Council directly it did not (for the same reason) breach thoseduties; and (iii) even if the design of the superstructure and the construction ofthe superstructure and the substructure were non-compliant, it was "off-duty" or"off-task" with respect to the same by 12 March 2008 at the latest.[6] By way of affirmative defence to the Council's claim for contribution, Becaalso pleads protection of the 10-year long-stop limitation under the BA 2004.[7] Beca subsequently applied for strike out and summary judgment on the basisof that limitation defence (as regards all claims) and of that "off-duty/off-task" defenceas regards the Council's negligence claims.[8] In May 2021, Clark J in the High Court dismissed those applications.2Beca now appeals that decision with leave of the High Court.3[9] Beca raises two issues of law. The first is whether the High Court was correctto find, contrary to Beca's argument, that the 10-year long-stop in the BA 2004 did notapply to the Council's claim for contribution from Beca. The second is whetherthe High Court was correct to find, again contrary to Beca's argument, that the factswere not sufficiently clear to grant Beca summary judgment dismissing the Council's"negligence" causes of action.[10] We refer to the first as "the limitation issue" and the second as "the summaryjudgment issue". We address them separately.2 BNZ Branch Properties Ltd v Wellington City Council [2021] NZHC 1058 [Judgment underappeal].3 BNZ Branch Properties Ltd v Wellington City Council HC Wellington CIV-2019-485-429,12 July 2021 at [6].The limitation issueBackground[11] As is common in building disputes, the facts here are reflected in a long andcomplex narrative. In the context of the limitation issue, however, that narrative canbe considerably simplified:(a) The Building was constructed in stages between 2006 and 2010.(b) Beca issued producer statements (PSs) for the design ofthe Building's substructure and superstructure on 4 October 2006 and19 February 2007.4 The Council issued the related building consentson 13 November 2006 and 23 February 2007.(c) From 16 January 2007 until 12 March 2008 Beca monitoredconstruction of the Building's substructure and superstructure.Beca issued PSs for building consents for the Building's substructureand superstructure on 12 March 2008. The Council issued CCCs forthe superstructure on 27 March 2009 and for the substructure on12 March 2010.(d) Practical completion of the Building was achieved in August 2011.4 Under the Building Act 1991 (BA 1991) PSs were defined to be "any statement supplied by or onbehalf of an applicant for a building consent or by or on behalf of a person who has been granteda building consent that certain work will be or has been carried out in accordance with certaintechnical specifications" (s 2).Section 33(5) of the BA 1991 provided:"Subject to section 34(3) of this Act, a territorial authority may, at its discretion, accept fromthe applicant a producer statement establishing compliance with all or any of the provisions ofthe building code."As explained in Jonathan Kaye and Shanti Frater Building Law in New Zealand(Thomson Reuters, Wellington, 2022) at [BL19.11]:"Section 34(3) [of the BA 1991], now replaced by s 49(1), required a territorial authority to besatisfied on reasonable grounds as to compliance with the Building Code. Thus, s 33(5) seems to have done no more than provide a producer statement was capable of beingreasonable grounds on which a territorial authority may be so satisfied. What amounts toreasonable grounds will always be a question of fact in all the circumstances of any particularcase, so that s 33(5) seems to have added little if anything to the general law."There is no mention of PSs in the BA 2004. Notwithstanding, and on the basis of the significanceof PSs under the BA 1991, they can, in appropriate circumstances, still be a factor on whichreliance can be placed by a territorial authority.(e) The Seddon earthquake occurred on 21 July 2013.(f) The Kaikōura earthquake occurred on 14 November 2016.(g) BNZ commenced proceedings against the Council on 2 August 2019.(h) The Council commenced:(i) its claim for contribution from Beca as a joint tortfeasor on26 September 2019; and(ii) its claims against Beca in negligence, on 9 March 2020.[12] As the pleadings reflect, limitation provisions found in three enactments are ofrelevance: the LA 1950, the LA 2010 and the BA 2004.[13] As regards the Council's claim for contribution from Beca, Beca relies onthe 10-year long-stop limitation period found in s 393(2) of the BA 2004. As relevants 393(2) modifies the applicability of the LA 1950 and the LA 2010 to civilproceedings relating to building work by providing that: no relief may be granted in respect of civil proceedings relating to buildingwork if those proceedings are brought against a person after 10 years or morefrom the date of the act or omission on which the proceedings are based.[14] Beca says the Council's claim for contribution from it is a civil proceedingrelating to building work based on Beca's allegedly negligent acts in issuing PSs on19 February 2007 and 12 March 2008. Hence, when commenced by the Council on26 September 2019, that proceeding was out of time.[15] The Council says s 393(2) of the BA 2004 does not apply to its claim forcontribution. Rather, the Council says the applicable provision is s 34 of the LA 2010,which — as relevant — provides:34 Claim for contribution from another tortfeasor or joint obligor(1) This section applies to a claim under section 17 of the Law ReformAct 1936—(a) by a tortfeasor (A) liable in tort to another person (B) inrespect of damage; and(b) for contribution from another tortfeasor (C) who is, or wouldif sued in time by B have been, liable in tort to B (whetherjointly with A or otherwise) in respect of that damage(4) It is a defence to A's claim for contribution from C if C proves that thedate on which the claim is filed is at least 2 years after the date onwhich A's liability to B is quantified by an agreement, award, orjudgment.[16] On that basis the Council says that as a tortfeasor claiming contribution fromBeca its liability in tort to BNZ is yet to be quantified. Accordingly the two-yearlimitation period established by s 34(4) has not begun, and its claim for contributionfrom Beca is not out of time.The High Court decision[17] In the High Court Beca principally relied on a line of High Court decisionswhich have found that the BA 2004's 10-year long-stop limitation period, as regardscontribution claims between joint tortfeasors, is in effect coextensive with that periodas it applies between (i) the plaintiff (here BNZ) and (ii) the tortfeasor facingthe contribution claim (here Beca). On that basis, and as Beca argues here,the Council's claim for contribution from Beca would be barred by the long-stoplimitation period on and from the same date as claims by BNZ against Beca would bebarred by that stipulation.[18] The Council acknowledged that line of authority, but argued those decisionswere wrong. It based that argument on what it said was the proper interpretation ofthe relevant legislation as particularly demonstrated by the legislative history.[19] In agreeing with the Council on that issue, and dismissing Beca's strike outapplication, the Judge concluded:5[77] The High Court decisions Beca relies on have proceeded onthe assumption that had Parliament intended to exclude claims forcontribution from the longstop in s 393(2) it would have said so expressly.5 Judgment under appeal, above n 2 (footnotes omitted).But there are limitations on the application of such an approach to statutoryinterpretation. The principle that general provisions do not derogate fromspecific provisions is applicable here. That principle, generalia specialibusnon derogant, has been defined in the following way:[W]here there are general words in a later Act capable ofreasonable and sensible application without extending them tosubjects specially dealt with by earlier legislation, you are not tohold that earlier and special legislation indirectly repealed,altered, or derogated from merely by force of such general wordswithout any indication of a particular intention to do so.[78] In considering the reach of s 393(2) the principle is justifiably appliedparticularly in light of Parliament's purposeful amendment to the Law ReformAct following Merlihan v A.C Pope Limited in order to consolidatea defendant's right to seek contribution from a joint tortfeasor. It is unlikelythat, without express words, Parliament intended "by a sweeping generalprovision to alter a rule passed to regulate a specific situation that wascarefully considered and formulated at the time.[79] For the foregoing reasons I am unable to conclude that the Council'sclaim for contribution is so clearly statute barred that it must be struck out.[20] The Judge further supported her reasoning with reference to the distinctionmade in s 4 of the LA 2010 between an "original claim" and an "ancillary claim".On the Judge's analysis, the phrase "civil proceedings" in s 393(2) of the BA 2004only applied to original claims, not ancillary claims. As (on the Judge's analysis) aclaim for contribution was an "ancillary claim", the two-year limitation period in s 34of the LA 2010 applied, rather than the 10-year long-stop in s 393(2) of the BA 2004.6The appeal[21] On appeal as regards the limitation issue, and by reference to the High Courtjudgment, both Beca and the Council repeated and enlarged upon the submissionsthe Judge recorded they had made to her.[22] For Beca Mr Ring KC argued that both aspects of the Judge's reasoningwere flawed:(a) First, the Judge had erred in applying the principle that an earlierspecific provision may survive a later more general one to find thatthe 10-year long-stop first enacted as s 91 of the Building Act 19916 At [68]–[69].(the BA 1991) was a general provision and so should not derogate fromthe special approach to contribution claims then found in s 14 ofthe LA 1950.(b) Secondly, the Judge had erred in the way she had interpreted the phrase"civil proceedings" as used in the BA 1991 and the BA 2004 asincluding only "original", and not "ancillary", claims — as those termsare defined in the LA 2010.7[23] In doing so Mr Ring again referred to the line of High Court cases that supportBeca's position.[24] For the Council Mr Taylor KC supported and expanded upon the analysis ofthe High Court.[25] We consider the arguments of the parties in detail in the analysis which follows.AnalysisOverview[26] The common law does not impose any time limit within which a civil claimmust be commenced. To encourage the bringing of legal actions in a timely fashion,and to protect against the difficulty of defending claims based on long past events,the period within which a person may commence civil proceedings against anotherhas, however, long been limited by a variety of enactments.[27] Over time different limitation periods applied to different classes ofproceedings, and different dates or events were stipulated for the commencement oflimitation periods, depending on the class of claim in question. At the same time,provision was made for limitation periods to be extended in a variety of circumstances,for example, in cases of disability, fraud and mistake.7 Limitation Act 2010, s 4.[28] The LA 1950 consolidated and amended the general enactments which up tothen had dealt with the limitation of the main classes of civil actions and a number ofothers which prescribed special periods of limitation for special classes of action.The LA 1950 followed substantially the Limitation Act 1939 (UK), but differed to takeaccount of New Zealand circumstances including, for example, matters involvinggeneral, Crown and Māori customary land.[29] Part 1 of the LA 1950 prescribed limitation periods for various classes of actionand the dates on which those periods commence. Those periods range from one year(in the case of actions brought for acts done pursuant to an Act of Parliament) to60 years (where the Crown sought to recover certain land).8[30] Those limitation periods generally commenced on "the date on which the causeof action accrued", without that phrase being further defined. Thus, s 4(1) provided:4 Limitation of actions of contract and tort, and certain otheractions(1) Except as otherwise provided in this Act the following actions shallnot be brought after the expiration of 6 years from the date on whichthe cause of action accrued, that is to say,––(a) actions founded on simple contract or on tort:(b) actions to enforce a recognisance:(c) actions to enforce an award, where the submission is not by adeed:(d) actions to recover any sum recoverable by virtue of anyenactment, other than a penalty or forfeiture or sum by wayof penalty or forfeiture.[31] A cause of action is said to have accrued when every fact the proof of which isnecessary to entitle judgment on a claim has come into existence. At the time ofthe passage of the LA 1950 it was well understood that causes of action accrued andlimitation periods began:(a) for breach of contract, on the occurrence of the breach;8 Limitation Act 1950, ss 7 and 23.(b) for torts (wrongful acts) actionable per se, on the date of the wrongfulact; and(c) for torts actionable only on proof of damage, as is the case for mosttorts including negligence, on the occurrence of the damage.[32] Consistently with the general concept, s 14 of the LA 1950 specified that claimsfor contribution accrued when all essential facts to establish that claimhad "happened".[33] On that basis the law as to when limitation periods began was regarded asgenerally satisfactory.[34] In a series of decisions in the 1970s and 1980s, in cases involving latent defectsin buildings and as we explain below, this Court moved to recognise a later date thanthat of the occurrence of the damage on which the limitation period for a claim fornegligent damage might begin: namely, the date upon which a reasonable plaintiffbecame aware of the occurrence of that damage. This approach is known as that ofdiscoverability. That development had significant implications for the operation ofthe LA 1950. In particular, the possibility a limitation period might not commenceuntil damage was discovered — or discoverable — was seen as creating uncertaintyand potential unfairness for defendants.[35] The Law Commission, in a number of reviews of the limitation regimebeginning in the 1980s, in part responding to those concerns, recommended reform,including moving away from limitation periods generally commencing on "the accrualof the cause of action" to the "date of the act or omission on which the claim is based".At the same time the Commission recommended retention of the traditional approachto the commencement of limitation periods for contribution claims: namely, as ofthe date on which the liability of the tortfeasor claiming contribution to the plaintiffwas quantified, as had been the position since the LA 1950.[36] The facts here are illustrative of the issues involved. As a preliminary point, itis to be noted that the LA 1950 continues to apply in respect of BNZ's claims againstthe Council in negligence because the LA 2010 only applies to "acts or omissions"from 1 January 2011.9[37] In its claim against the Council BNZ pleads the dates of the Council'snegligence as being 27 March 2009 and 12 March 2010: the dates of issue ofthe relevant CCCs. It also pleads that "[o]n or about 14 November 2016 the Buildingsuffered irreparable damage during the magnitude 7.8 Kaikoura earthquake, and inparticular to its superstructure". That would appear to be a pleading it was on14 November 2016 that the damage caused by the Council's negligence eitheroccurred or was discoverable, and that it was therefore not until that date BNZ's causeof action accrued and the applicable limitation period began. Hence, underthe LA 1950 — and applying the discoverability approach — no time-bar arose asbetween BNZ and the Council until 14 November 2022. Its claim against the Council,filed on 2 August 2019, was therefore in time.[38] But, and as can be seen, without that later "discoverability" date being the dateon which the limitation period began, BNZ's causes of action would have accrued by12 March 2010 at the latest and accordingly would have been time-barred from12 March 2016, well before BNZ issued its proceedings against the Council.[39] That brings us to the 10-year long-stop in s 393(2) of the BA 2004, as pleadedhere by both of the Council and Beca, and to the dispute as to the applicability of thatprovision in the context of the Council's claim for contribution from Beca.[40] By reference to the chronology, the 10-year long-stop dates as between BNZand the Council would appear to be 27 March 2019 (superstructure) and12 March 2020 (substructure), the relevant act or omission being in terms of s 393(2),the issue of CCCs. The Council therefore pleads the s 393(2) long-stop to defeatthe discoverability commencement date which would otherwise favour BNZ if thatperiod did not begin until the date of the Kaikōura earthquake, 14 November 2016.[41] Taking a similar approach Beca argues here the long-stop limitation periodapplicable to the Council's claim for contribution from it began on the date of Beca's9 Limitation Act 2010, s 59.tort, that is its act or acts in breach of its duty to BNZ. Beca says the issue by it ofthe PSs for building consents negligently in breach of its duty to BNZ — if it is atortfeasor — are, in terms of s 393(2) of the BA 2004, the acts or omissions on whichthe Council's claim for contribution is based. Thus the long-stop dates are 19 February2017 (superstructure) and 12 March 2018 (substructure), before the Council made itsclaim for contribution.[42] But — the Council argues — properly understood the Council's claim forcontribution from Beca is based neither on the fact of its own negligence nor the factof Beca's negligence. Rather, that claim is based on a finding of liability owed bythe Council to BNZ: it is only then that its cause of action for contribution accrues.Therein lies our issue: how, and in what way, should s 393(2) be applied to theCouncil's claim for contribution?[43] In our view, the key to the resolution of that question of statutory interpretationis the significance of the distinct legal and conceptual basis for a claim for contributionbetween two tortfeasors as opposed to a claim in negligence for damages by a plaintifffrom a tortfeasor.[44] As Elias CJ explained in Hotchin v New Zealand Guardian Trust CompanyLtd, the enactment in s 17(1)(c) of the LRA 1936 of the statutory right, on whichthe Council relies, to contribution between tortfeasors was an expansion ofthe position at common law:10[133] When two parties are liable to a third for the same harm (whetherequally or proportionally), the principle of equitable contribution applied bythe common law as an aspect of natural justice11 has long permittedcontribution.12 Although a principle of general application, applied by10 Hotchin v New Zealand Guardian Trust Company Ltd [2016] NZSC 24, [2016] 1 NZLR 906(footnotes in original). See also at [161]–[162] per William Young J.11 Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 at 350 perKitto J, citing Lord Mansfield in Godin v London Assurance Co (1758) 1 Burr 489, 97 ER 419(KB) and Newby v Reed (1763) 1 BL W 416, 96 ER 237 (KB).12 Dering v Earl of Winchelsea (1787) 1 Cox 318, 29 ER 1184 (Exch); Royal Brompton HospitalNHS Trust v Hammond [2002] UKHL 14, [2002] 1 WLR 1397 at [5] per Lord Bingham, at [27]per Lord Steyn, and at [46] per Lord Hope. For the history of equitable contribution see thejudgments of Kitto J in Albion Insurance Co Ltd v Government Insurance Office (NSW), above n11, and Lord Bingham in Royal Brompton. The ability to apportion responsibility is discussed inBurke v LFOT Pty (2002) 209 CLR 282 from 292 per Gaudron ACJ and Hayne J and was touchedon in Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2NZLR 726 at [57]–[58] per Elias CJ, at [75] per Blanchard J, from [124] per Tipping J and fromcommon law courts as well as the courts of equity, the decision inMerryweather v Nixan denied its application to tortfeasors until statutoryreform, now contained in New Zealand in s 17(1)(c) of the Law Reform Act.13[45] Section 17(1)(c) did not, however, address the question of when such claimsaccrue, or their limitation. When that issue did arise New Zealand law, reflectingthe distinct conceptual basis of claims for contribution between tortfeasors as opposedto the basis for claims by a plaintiff against one or more of those tortfeasors, recognisedthat the claim for contribution arose, and the limitation period for such a claim began,when the law recognised the liability of the claimant to the plaintiff which, whendischarged, would enrich the claimee tortfeasor. As Lord Wright MR explained inBrook's Wharf and Bull Wharf Ltd v Goodman Bros:14The essence of the rule is that there is a liability for the same debt resting onthe plaintiff and the defendant and the plaintiff has been legally compelled topay, but the defendant gets the benefit of the payment, because his debt isdischarged either entirely or pro tanto, whereas the defendant is primarilyliable to pay as between himself and the plaintiff. The case is analogous tothat of a payment by a surety which has the effect of discharging the principal'sdebt and which, therefore, gives a right of indemnity against the principal.[46] Thus in these circumstances it is not the fact that both BNZ and Beca havecommitted torts against BNZ that gives rise to the right of contribution. Rather, sucha right only arises here when Beca is here enriched by the Council being liable todischarge more than its own proper share of the losses incurred by BNZ as caused bythe tortious acts of them both.[47] The view we have reached, based on the words of the relevant legislation andthe legislative history, and agreeing with the High Court, is therefore that the 10-yearlong-stop found in s 393(2) of the BA 2004 does not preclude the Council fromcommencing its claim for contribution as it has now done. Rather, and in terms ofthe applicable transitional provisions, it is the terms of s 34 of the LA 2010 that aredeterminative of that issue.[48] In the result, since the Council's (alleged) liability to BNZ has not yet beenquantified, time has not yet started to run and accordingly the Council's claim for[210] per McGrath J.13 Merryweather v Nixan (1799) 8 D & E 186, 101 ER 1337 (KB).14 Brook's Wharf and Bull Wharf Ltd v Goodman Bros [1937] 1 KB 534 (CA) at 544.contribution against Beca was in time. We uphold the High Court's conclusion onthat point.[49] However, we respectfully differ from the High Court in two respects:(a) First, we accept that contribution proceedings in this case are" proceedings relating to building work" for the purposes of s 393 ofthe BA 2004.(b) Secondly, we do not think the terms of s 393 apply only to original, andnot ancillary, claims as those terms are defined in the LA 2010. In anyevent, we consider contribution claims are more accuratelycharacterised as original claims.[50] We now set out the detail of our analysis. We first describe the approach tostatutory interpretation before undertaking our review of the legislative history.That history starts with the origin of the statutory right to contribution, then turns tothe treatment of contribution claims under limitation provisions, the common lawdevelopments as regards the accrual of the cause of action in negligence for latentdefects, and the Law Commission's work on the limitation regime in New Zealand.Statutory interpretation principles[51] The correct approach to problems of statutory interpretation is well established.Section 10 of the Legislation Act 2019 provides:10 How to ascertain meaning of legislation(1) The meaning of legislation must be ascertained from its text and in thelight of its purpose and its context.(2) Subsection (1) applies whether or not the legislation's purpose isstated in the legislation.(3) The text of legislation includes the indications provided inthe legislation.(4) Examples of those indications are preambles, a table of contents,headings, diagrams, graphics, examples and explanatory material, andthe organisation and format of the legislation.[52] As Tipping J put it:15 text and purpose [are] the key drivers of statutory interpretation the meaning of the text should always be cross-checked against purpose In determining purpose the Court must obviously have regard to boththe immediate and general legislative context. Of relevance too maybethe social, commercial or other objective of the enactment.[53] Here our task is to interpret, and by so doing to resolve any inconsistency thatmay exist between, s 393 of the BA 2004 and s 34 of the LA 2010. We set out thoseprovisions again now, as relevant:393 Limitation defences(1) The Limitation Act 2010 applies to civil proceedings against anyperson if those proceedings arise from—(a) building work associated with the design, construction,alteration, demolition, or removal of any building; or(b) the performance of a function under this Act or a previousenactment relating to the construction, alteration, demolition,or removal of the building.(2) However, no relief may be granted in respect of civil proceedingsrelating to building work if those proceedings are brought against aperson after 10 years or more from the date of the act or omission onwhich the proceedings are based.34 Claim for contribution from another tortfeasor or joint obligor(1) This section applies to a claim under section 17 of the Law ReformAct 1936—(a) by a tortfeasor (A) liable in tort to another person (B) inrespect of damage; and(b) for contribution from another tortfeasor (C) who is, or wouldif sued in time by B have been, liable in tort to B (whetherjointly with A or otherwise) in respect of that damage.(4) It is a defence to A's claim for contribution from C if C proves that thedate on which the claim is filed is at least 2 years after the date onwhich A's liability to B is quantified by an agreement, award, orjudgment.15 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [22] (footnotes omitted).[54] Beca points to the plain meaning of s 393(2). "Civil proceedings" includeclaims for contribution. The Council's claim against it for contribution relates to"building work", that is building work undertaken by Beca. Beca finished that workmore than 10 years ago. Beca says Parliament could not have been plainer inthe words it used in s 393. The long-stop of 10 years applies. Moreover thisinterpretation accords with the clear policy behind the enactment of s 393, and henceParliament's intention.[55] The Council points to the specific context of developments, over a considerableperiod of time, in New Zealand law as regards contribution between joint tortfeasors.It says those developments resulted in a specific statutory framework which permitsone joint tortfeasor, sued by a plaintiff, to claim contribution from another. That isrecognised to be, as a cause of action, independent from that of the plaintiff to claimagainst both it and the other tortfeasor. There is, furthermore, as regards that cause ofaction, specific provision as to when that cause of action arises, namely the time atwhich the defendant is found liable to the plaintiff. Its limitation period, the Councilsays, is two years from that same time. That statutory regime, and the long process ofrelevant law reform that led to its establishment, makes it clear the Council's claim forcontribution from Beca is within time.[56] The law has developed a number of general principles by reference to whichinconsistencies within particular statutes, and between quite different statutes, can beapproached. Of most relevance for our purposes is the principle generalia specialibusnon derogant, applied by the High Court Judge, by which, as noted, earlier specificprovisions can survive later more general ones.16 Before we apply those principles,we consider the legislative history. The Law Commission, and its work in this area,features prominently in that background. Reports of the Law Commission arevaluable interpretative materials in general terms.17 We recognise that care has to betaken with such material generally, and that the views of the Law Commission in thisarea have not always been taken up by Parliament.16 See above at [19] and [22](a)].17 See for example Sheehan v Watson [2010] NZCA 454, [2011] 1 NZLR 314.[57] The legislative history involves a number of statutory provisions.The principal ones are:(a) Section 17(1)(c) of the LRA 1936 as enacted.(b) Section 14 of the LA 1950 and s 17(1)(c) of the LRA 1936 as amendedby the LA 1950.(c) Section 91 of the BA 1991.(d) Section 393 of the BA 2004.(e) Section 34 of the LA 2010.[58] The terms of those provisions, and of the legislation in which they appear,reflect significant developments in both the substantive common law of liability fornegligence and the essentially procedural statutory provisions for limitation of actions.Those developments occurred over a long period of time in New Zealand, mostparticularly in the period from the publication by the Law Commission of its reportLimitation Defences in Civil Proceedings (Report 6) in 1988 up to and includingthe enactment of the LA 2010.18 As will become apparent, various cases andLaw Commission reports from that period provide important background for a properunderstanding of those provisions.Section 17(1)(c) of the LRA 1936[59] The right to claim contribution between tortfeasors was created by s 17(1)(c)of the LRA 1936, an enactment based directly on the Law Reform (Married Womenand Tortfeasors) Act 1935 (UK). On enactment, s 17 of the LRA 1936 provided:17 Proceedings against, and contribution between, joint and severaltortfeasors(1) Where damage is suffered by any person as a result of a tort (whethera crime or not)—18 Law Commission Limitation Defences in Civil Proceedings (NZLC R6, 1988).(c) any tortfeasor liable in respect of that damage may recovercontribution from any other tortfeasor who is, or would if suedhave been, liable in respect of the same damage, whether as ajoint tortfeasor or otherwise, so, however, that no person shallbe entitled to recover contribution under this section from anyperson entitled to be indemnified by him in respect ofthe liability in respect of which the contribution is sought.[60] Prior to the enactment of s 17, the position at common law had been that aplaintiff could choose which of a number of persons liable to it in tort it would sue.That person was liable, without any right to seek contribution from others also liableto the plaintiff but not sued, for 100 per cent of the plaintiff's losses.19 One Englishcase explained the background to the impetus for the Law Reform (Married Womenand Tortfeasors) Act:20Before the passing of the Act it was left to the claimant to choose his victim.The person sued, whether he was a joint or a separate tortfeasor, if he wasimplicated as being partly responsible for the accident, had to abide by thatchoice. The person damnified might sue one joint tortfeasor alone and so laythe whole burden of the wrongdoing on him, or, in the case of separatetortfeasors, might sue them one by one and recover from one alone or fromsuch as he chose to execute judgment against, provided that he did not recovermore than the greatest sum awarded or, against any defendant, more than wasawarded in the action against him. The object of the Act was to cure this eviland to enable those upon whom the burden had been placed to recover a justproportion from those who shared the blame.[61] More recently, in a 2015 decision, Fogarty J also explained that background:21[29] The history of contribution can be reliably taken from the Australiantext, Equity Doctrines and Remedies, by Meagher Gummow and Lehane.The opening sentences of the chapter are as follows:The application by the Court of Chancery of the doctrine ofcontribution is an example of its concurrent jurisdiction withthe common law courts. Both equity and law came to sharethe view that, in the words of Kitto J in Albion Insurance CoLtd v GIO (NSW) (1969) 121 CLR 342 at 350; [1970] ALR441 at 446, "persons who are under co-ordinate liabilities tomake good the one loss (eg sureties liable to make good19 See Merryweather v Nixan, above n 13. In Hotchin, above n 10, at [162] William Young J notedthere were limited exceptions to this rule, and referred to Belan v Casey [2003] NSWSC 159,(2003) 57 NSWLR 670 at [88]–[101] and [135]–[137] where it was said those exceptions were"ones where the tortfeasor had a legal liability, but arising from circumstances where the conductof the tortfeasor was not so reprehensible that a court would not help him".20 George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 (HL) at 181per Lord Porter.21 Body Corporate 330324 "City Gardens Apartments" v Auckland City Council [2015] NZHC 995(footnote omitted).a failure to pay the one debt) must share the burden pro rata"(emphasis supplied). There were a number of relationshipscognisable both at law and in equity which involvedco-ordinate liabilities in this sense. Joint tortfeasors werelong in a different position. For the common law turned itsface against contribution between joint tortfeasors inMerryweather v Nixan (1799) 8 TR 186; 101 ER 1337, andequity followed the law, with the result that the right as itexists today rests upon statutes modelled afterthe ambiguously phrased Imperial Law Reform (MarriedWomen [and] Tortfeasors) Act 1935.[30] The New Zealand Law Reform Act 1936 followed the ImperialLaw Reform.[62] Reflecting the equitable origin of the right, s 17(2) provides:(2) In any proceedings for contribution under this section the amount ofthe contribution recoverable from any person shall be such as may befound by the Court to be just and equitable having regard to the extentof that person's responsibility for the damage; and the Court shall havepower to exempt any person from liability to make contribution, or todirect that the contribution to be recovered from any person shallamount to a complete indemnity.[63] Todd on Torts explains the nature of the right:22This right to recover contribution is a right sui generis: it is a statutory right inthe nature of an action for damages. It resembles a plaintiff's claim for moneypaid by him to the use of the defendant, who has been relieved, pro tanto, ofhis direct liability to the victim of the tort.[64] At the time the LRA 1936 was enacted limitation provisions in New Zealandwere found in any number of separate pieces of legislation and no specific attentionwas paid to limitation issues as regards the newly recognised right.Section 14 of the LA 1950[65] Limitation issues as regards claims for contribution were first addressed by theLA 1950, in response to the Kings Bench Division decision Merlihan v A C Pope Ltd.23The case involved a collision on 15 March 1943 between two motor vehicles.An injured passenger from the first vehicle (P) sued the driver of the second (D1).22 Stephen Todd (ed) "Multiple Tortfeasors and Contribution" in Todd on Torts (8th ed, ThomsonReuters, Wellington, 2019) at [24.3.01] (footnotes omitted).23 Merlihan v A C Pope Ltd [1946] KB 166 (KB).That claim was commenced on 17 May 1944. In March 1945, shortly before judgmentfinding him liable, D1 commenced a third-party claim against the driver of the firstvehicle (D2) under the English equivalent of s 17(1)(c).[66] At the time, the limitation period applying as between P and D1 was 12 monthsfrom the date of the accident. D2 claimed the protection of that limitation period.His proposition was that to make the section work as D1 wanted, the words "in time"needed to be added to s 17(1)(c), so that a right of contribution could arise where D2"if sued in time, would have been liable" as joint tortfeasor.24 In the absence of thosewords, he contended the limitation defence was available because, if sued by P on orafter the time D1 claimed contribution, he would have had no liability to P.[67] Of significance for our purposes is the approach taken in Merlihan as to whenthe limitation period for a claim for contribution began. The question was whetherthe cause of action represented by the claim for contribution arose, as D1 argued, whenhe had been found liable to P or, as claimed by D2, on the date of the accident whenD2 had become a tortfeasor. It can be seen that question is closely related to thelimitation issue involved here.[68] Birkett J found in favour of D2. D1's cause of action for contribution from D2had arisen on the date when D2 had become a tortfeasor, namely the date ofthe accident. Therefore, D1's third party claim was out of time.25[69] That decision was roundly criticised. In a further King's Bench decision ofthe following year, Hordern-Richmond Ltd v Duncan, Cassels J doubted whetherMerlihan was correct.26 In doing so he emphasised:(a) A third party proceeding (that is, between D1 and D2) is in the natureof a separate action from that action as between P and D1:27The cause of action which brings a plaintiff and a defendantbefore the court in such a case as may arise of this accident24 At 170.25 At 170.26 Hordern-Richmond Ltd v Duncan [1947] KB 545 (KB). See also Morgan v Ashmore, Benson,Pease & Co Ltd [1953] 1 WLR 418 (KB).27 At 552.is negligence. The cause of action which entitles a defendantto bring a third party before the court is the liability ofthe third party to make contribution or to pay an indemnity.(b) A cause of action brought by D1 against D2 does not arise until D1'sliability to P has been ascertained.28[70] That reasoning found favour in the English Court of Appeal's decision inLittlewood v George Wimpey & Co Ltd (Wimpey's case),29 and was assumed to becorrect on appeal to the House of Lords.30[71] In Wimpey, P had sued D1 within time but D2 out of time. At trial the Judgefound D1 was two-thirds to blame and D2 was one-third to blame, but ordered D1 tocompensate P for the full amount because P's claim against D2 was time barred.The question was whether D1 could nevertheless sue D2 for contribution.[72] As a preliminary point, the Court of Appeal heard argument as to whether timeran from the commission of the tort or from the moment D1's liability to P wasascertained by judgment. By majority, the Court held it was the latter, in a repudiationof Merlihan. Denning LJ, who dissented in the result but agreed with Singleton LJ31on this point, explained:32This depends on when the cause of action for contribution arises. If it arisesat the date of the accident (as Birkett J. held in Merlihan v. A. C. Pope Ld.,Pagnello Third Party) then the remedy would be barred; but I do not think thatthat is correct. It seems to me clear that a tortfeasor cannot recovercontribution until his liability is ascertained. If he has not been sued and haspaid nothing and admitted nothing, he can have no cause of action forcontribution, for the simple reason that he may never be called on to pay at all.The damaged plaintiff may go against the other tortfeasor only. Once theliability of the first tortfeasor has, however, been ascertained by judgmentagainst him or by admission, then he has a cause of action for contributionagainst the second tortfeasor. He can obtain a declaration of his right tocontribution and a prospective order under which, whenever the first tortfeasorhas paid any sum more than his share, he can get it back from thesecond tortfeasor.28 At 552.29 Littlewood v George Wimpey & Co Ltd [1953] 2 QB 501 (CA) at 511 per Singleton LJ and 519–520 per Denning LJ (Morris LJ dissenting at 523).30 George Wimpey & Co Ltd v British Overseas Airways Corporation, above n 20, at 177 perViscount Simonds, 182–183 per Lord Porter, and 193 per Lord Keith.31 Littlewood v George Wimpey & Co Ltd, above n 29, at 511.32 At 519–520 (footnotes omitted).A close analogy is the right of one surety to contribution from a co-surety.His right at law did not accrue until he had paid more than his share, Daviesv. Humphreys; but his right in equity (which now prevails) arose when hisliability was ascertained and the Statute of Limitations then began to run.(Wolmershausen v. Gullick; Robinson v. Harkin). In cases where a writ isissued against the first tortfeasor and he serves a third-party notice againstthe second tortfeasor, the notice is convenient machinery, but it does not meanthat he has then a cause of action. His cause of action only arises whenjudgment is given against him ascertaining his liability.[73] As noted that position was assumed to be correct in the House of Lords.[74] The New Zealand response to Merlihan was to amend s 17(1)(c) ofthe LRA 1936 by adding the words "in time" and, anticipating the position finallyreached by the English courts in Wimpey, to include s 14 in the LA 1950.33Section 14 provided:For the purposes of any claim for a sum of money by way of contribution orindemnity, however the right to contribution or indemnity arises, the cause ofaction in respect of the claim shall be deemed to have accrued at the first pointof time when everything has happened which would have to be proved toenable judgment to be obtained for a sum of money in respect of the claim.[75] As a result it was clear thereafter the LA 1950's limitation period of six years"from the date on which the cause of action accrued" applied to the statutory right toclaim contribution, such a claim being, in terms of s 4(1)(d), a claim to recover sums"recoverable by virtue of any enactment". Moreover, that limitation periodcommenced on the date stipulated in s 14 — the date liability crystalised — not thedate on which P's cause of action against the joint tortfeasor in question accrued.As regards limitation and contribution, there the matter stood for some time.Case law[76] Case law developments in New Zealand in the late 1970s regarding liabilityfor latent defects in buildings brought limitation issues to the fore. It is thosedevelopments which explain the original enactment of a 10-year long-stop periodfound in s 91 of the BA 1991.33 For further discussion of the case law around this period, see Glanville Williams "Tort—Contribution between Tortfeasors—Limitation" (1954) 12 CLJ 50; Glanville Williams "Tort—Contribution Between Concurrent Tortfeasors" (1956) 14 CLJ 15; and James Hardie & Co PtyLtd v Seltsam Pty Ltd [1998] HCA 78, (1998) 159 ALR 268 at [66]–[68] per Kirby J (dissenting,but with whom McHugh J agreed).[77] First, in Bowen v Paramount Builders (Hamilton) Ltd this Court recognised ageneral duty of care owed by those involved in the construction of buildings to personswho subsequently become the owners of those buildings.34[78] Then, in Mount Albert Borough Council v Johnson, this Court confrontedthe issue of when the cause of action for negligence causing a latent defect accrued.35The property had been built in 1966. The trial Judge, Mahon J, made unchallengedfindings that the existence of the defects, on the basis of which proceedings werecommenced in December 1973, had not become apparent to the plaintiff until the endof 1970. She had had no reasonable opportunity of suspecting their existence earlier.Applying English authority the Judge held the action was not barred, taking the thenapplicable English approach that the cause of action accrued when the damage was,or should have been, discovered.36[79] Whilst this Court did not expressly disagree with the "discoverability"approach taken by Mahon J, it reached the same conclusion in a slightly different way.Based on the facts, the majority, Cooke and Somers JJ, and Richardson J who wroteseparately, found the damage had occurred, and hence the owner's cause of action hadaccrued, in 1970. On that basis, no question of limitation arose. The case was seen,however, as recognising the possibility at least of the commencement of the limitationperiod depending not on when the damage occurred, but when in fact it wasfirst discovered.[80] The uncertainty in New Zealand as to the correct approach was compoundedby the House of Lords's 1983 decision in Pirelli General Cable Works Ltd v OscarFaber & Partners.37 Pirelli turned its back on the "discoverability" approach,34 Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 (CA).35 Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 (CA). Other cases in which theseissues were considered during this period include: Dutton v Bognor Regis Urban District Council[1972] 1 QB 373 (CA); Gabolinscy v Hamilton City Corporation [1975] 1 NZLR 150 (HC);Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858 (CA); Anns vMerton London Borough Council [1978] AC 728 (UKHL); Batty v Metropolitan PropertyRealisations Ltd [1978] QB 554 (CA); Acrecrest Ltd v W S Hattrell & Partners [1983] QB 260(CA); Dennis v Charnwood Borough Council [1983] QB 409 (CA); Pirelli General Cable WorksLtd v Oscar Faber & Partners [1983] 2 AC 1 (HL); Askin v Knox [1989] 1 NZLR 248 (CA); andJones v Stroud District Council [1986] 1 WLR 1141 (CA).36 Mount Albert Borough Council v Johnson, above n 35, at 237–238.37 Pirelli General Cable Works Ltd v Oscar Faber & Partners, above n 35.reinstating the traditional approach that limitation periods commenced on the accrualof the cause of action.38 This Court chose to confront that uncertainty in Askin v Knox,a case that itself did not involve limitation questions as it was decided on the basis thatnegligence had not been established.39[81] The Court, in a judgment delivered by Cooke P, supported the reasonablediscoverability approach. The Court agreed with commentators that the approach inPirelli could cause injustice. It noted the passage of the English Latent Damage Act1986 in response to Pirelli, categorising that legislation as having substantiallythe same effect as Bowen and Johnson. On that basis it concluded a New Zealandcourt might not necessarily follow the approach in Pirelli. At the same time, it saidthat if the discoverability approach to accrual was taken, a long-stop period would benecessary to achieve the right balance between justice for plaintiffs and certainty fordefendants. But that would be require legislation.40[82] Those observations aside, the specific issue of the accrual of claims forcontribution, and hence the commencement of applicable limitation periods, had notbeen addressed in the cases.Report 6[83] In October 1988 the Law Commission published Report 6.41 Report 6 wasthe first of a number of reports on questions of limitation, contribution and relatedissues which led to the eventual passage of the LA 2010.[84] In Report 6 the Commission paid particular attention to the limitation issuesraised by claims involving latent defects, including in what it described asthe "building cases". It supported this Court's response in Askin v Knox to the"discoverability" approach to accrual of causes of action and commencement oflimitation periods in such cases.42 But it was concerned the law should develop insuch a way so as to limit the uncertainties which could be associated with that38 At 18.39 Askin v Knox, above n 35.40 See Cooke P's observations at 253–256.41 Law Commission Limitation Defences in Civil Proceedings, above n 18.42 At [182].approach, given both the variability of the way in which the law determined whena cause of action accrued and the significance the law attributed to the time whenknowledge of damage was acquired by a claimant.43[85] On that basis, in Report 6 the Law Commission recommended a shorter generallimitation period of three years commencing on a new standard commencement date:"the date of the act or omission on which the claim is based". In doing so theCommission noted the difficulties associated with the LA 1950's accrual approach:44[T]he facts required to be proved may differ depending on the nature of thelegal claim made. Thus the claim for breach of contract accrues on the dateof breach, irrespective of whether the breach has caused actual loss. On theother hand, a claim in negligence does not accrue until there is damageresulting from a breach of duty. The distinction is of major importance incases – such as those involving building subsidence – where there can bea significant delay between a breach and resulting damage or injury. Wherethere is a continuing series of events which infringe the rights of a claimant,there is a separate accrual for each event and a separate limitation periodapplies in relation to each event. In such cases (copyright infringement is anexample) the limitation period acts as a limit on recovery as damages (andinterest) will normally only be available back as far as the six years precedingthe commencement of litigation.[86] On the Commission's proposed approach, limitation periods would notcommence on the uncertain dates of discovery, nor — for tort claims — ofthe occurrence of damage. But, responding to the issues that had prompted the courtsto recognise the discoverability approach, the proposed standard three-year periodcould be extended where a claimant proved lack of specified knowledge relating tothe claim. A general long-stop period of 15 years would control the uncertainty createdby that "knowledge" extension.45 As will become apparent, that basic structure cameto be adopted for most claims — called "money claims" in the LA 2010.[87] However, the Commission recognised its proposed new standardcommencement date would not always be clear:46In most cases the date of the "act or omission" will be clear. It refers to thatconduct of the defendant of which the claimant complains. In relation to acontract, it will usually be the date of breach and thus correspond with the43 At [168]–[170].44 At [43].45 At [182].46 At [169] and [171].present rule as to the date of accrual. In other cases, the act or omission maybe an earlier date than accrual – in negligence, for example, where a delay inthe occurrence of damage would relate to our proposed extension provisionsrather than the date of accrual. In some categories of cases, such as thosewhere questions of status are involved, there may be no relevant act oromission and no limitation point will arise.As may be seen most clearly in the draft new statute we recommend (set outin Chapter XV), we have provided special provisions dealing with claimsbased on demands, conversion, contribution, indemnity and certainintellectual property claims.[88] In the case of claims for contribution, the standard three-year limitation periodwould apply but with a bespoke specification of the date of the act or omission whichformed the basis of such claims.47 Clause 20(3) of the Law Commission's draftBill provided:When a claim for a sum of money by way of contribution or indemnity ismade, the "date of the act or omission" on which the claim is based, forthe purposes of this Act, is the date on which the sum of money in respect ofwhich the claim is made is quantified by decision of a court or arbitrator orby agreement.[89] In effect, therefore, the Law Commission recommended the continuation ofthe approach found in s 14 of the LA 1950.Section 91 of the BA 1991[90] The legislative response to Report 6 would be a long time coming. In themeantime, and following an extensive review, the BA 1991 was enacted, completelyoverhauling the regulation of the building industry. As introduced into Parliament,however, the Bill made no mention of limitation issues, notwithstandingthe considerable attention that had by then been paid by this Court to the question ofthe accrual of claims for liability for latent defects in buildings.[91] That matter, however, was considered when the Bill was before the InternalAffairs and Local Government Select Committee. As a result the responsible Ministerfirst recommended a 10-year long-stop limitation period be placed on negligence47 At [166] and [180].claims against territorial authorities and building certifiers for negligence inthe issuance of building consents and CCCs. Subsequently, and having receivedproposals from the Minister of Justice, the responsible Minister recommended that a15-year negligence long-stop limitation period be introduced applying to all partieswho could be defendants in a building liability case.[92] In making that recommendation the Minister noted there had been widespreadconcern within the building industry about the uncertain nature of the liability regimeas it applied to latent faults in buildings. The introduction of a "defined liabilityregime" would make it easier for the insurance industry to underwrite professionalliability indemnity requirements of building design professionals and builders.[93] Given the scope of what was proposed, the Minister also recommended thatspecific provision be made in the Bill for the commencement of that long-stop period:in the case of territorial authorities, 15 years from the date of issue of the buildingconsent, in the case of other parties 15 years from the date of their negligent acts.48[94] As a result, a new cl 73B was included in the Bill as reported back. As relevanthere, it provided:73B Limitation defences(1) Except to the extent provided in subsection (2) of this section,the provisions of the Limitation Act 1950 apply to civil proceedingsagainst any person where those proceedings arise from—(a) The construction or alteration of any building; or(b) The exercise of any function under this Act relating to theconstruction or alteration of that building.(2) Civil proceedings may not be brought against any person 15 years ormore after the date of the act or omission on which the proceedingsare based.48 The background contained in the preceding three paragraphs is derived from correspondencebetween the Minister and the Department of Internal Affairs in August and October 1991.That correspondence was received by the Select Committee as submissions. We have obtained itfrom the Parliamentary Library and have summarised it here as part of the historical legislativerecord.[95] The Law Commission supported that development.49 The use of the "date ofthe act or omission on which the proceedings are based" as the commencement datefor the long-stop limitation period reflected the Law Commission's general approachin Report 6 to the commencement of limitation periods. That said, it is to beremembered that in Report 6 the Law Commission had, as already noted, also madeexpress provision in its draft legislation deeming "the date of the act or omission" onwhich contribution claims were based as being the same as the accrual approach takenin s 14 of the LA 1950.50[96] The Bill was enacted without further amendment of that provision, except thatthe long-stop limitation period was reduced after the second reading debate to10 years.51 No particular consideration would appear to have been given tothe relationship between the stipulation in s 14 of the LA 1950 as to the accrual ofclaims for contribution under s 17(1)(c) of the LRA 1936 and the date stipulated bys 91 as the commencement of the limitation period for civil proceedings generally,namely the date of the act or omission on which those proceedings are based.[97] In its March 1992 Preliminary Paper No 19, Apportionment of Civil Liability,the Law Commission focused particularly on the rules concerning multiple liabilitydisputes, where the issue of contribution most frequently arises.52 As relevant here,the Commission agreed with the policy reflected in s 17(1)(c) of the LRA 1936, asconfirmed by the LA 1950 amendments. On that basis it included cl 14 in the"Civil Liability and Contribution Act" it proposed, which would have been a specificAct complementing the more general LA 1950.53 Clause 14 provided as relevant:14 Limitation in contribution proceedings(1) A defence under the Limitation Act 1950, or similar defence underanother enactment, in equity or under an agreement, that is availableto a concurrent wrongdoer in respect of a claim for damages against49 As noted in Klinac v Lehmann HC Whangarei AP15-01, 6 December 2001 at [17],the Law Commission had assisted the Select Committee in drafting cl 73B of the Bill.50 See above at [88].51 Building Act 1991, s 91.52 Law Commission Apportionment of Civil Liability (NZLC PP19, 1992). Most of theCommission's report concerned the choice between the in solidum basis of liability, where eachdefendant is liable for the whole of the plaintiff's loss, and the proportionate apportionment ofliability between defendants based on contributing fault.53 The Commission explained this Act would replace a number of other statutory provisions: see[197].that concurrent wrongdoer is not a defence in respect of a claim forcontribution against the concurrent wrongdoer.(3) This section does not affect the availability to a concurrent wrongdoerof any defence under the Limitation Act 1950, or a similar defenceunder another enactment, in equity or under an agreement in respectof a claim for contribution in its own right.[98] The Commission's commentary explained:54Subsection (1) ensures that a limitation defence of any kind (ie, a bar againstbringing proceedings because of a time limitation) available to D2 against Pdoes not prevent D1 from claiming contribution against D2. It preserves andextends to all kinds of civil claims the rule now applying to contributionclaims between tortfeasors under s 17(1)(c) of the Law Reform Act 1936. Subsection (3) relates to the limitation period applicable to the contributionclaim itself (see s 14 Limitation Act 1950 and paras 253 and 254 of the paper)and indicates that the section does not affect it.[99] The Commission subsequently confirmed the approach taken in that proposalfor a separate Civil Liability and Contribution Act in a further report, Apportionmentof Civil Liability.55Hamlin and discoverability[100] In September 1994, by majority decision, this Court in Invercargill CityCouncil v Hamlin adopted the "discoverability" approach which had earlier beendiscussed.56 It did so, in general terms, on the basis that approach was nowthe "established New Zealand approach", and the issue for the Court was whethermore recent decisions of the House of Lords, in particular Murphy v BrentwoodDistrict Council,57 should be followed so as to change that approach.58 In answeringthat question in the negative, the majority noted Parliament had seen fit to introduce54 At 95.55 Law Commission Apportionment of Civil Liability (NZLC R47, 1998).56 Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA) (McKay J dissenting) at 524 perCooke P, 529 per Richardson J, 533 per Casey J, and 534 per Gault J.57 Murphy v Brentwood District Council [1991] 1 AC 398 (HL).58 Hamlin, above n 56, at 516 per Cooke P.a long-stop defence into the BA 1991, but had not otherwise changed relevantNew Zealand law.59 Drawing the issues together, Cooke P concluded:60For these reasons I would hold that a cause of action for negligence againstthe local authority arose when the allowance of defective foundations wasdiscovered by the plaintiff, not having been reasonably discoverable bya reasonable house-owner before then [101] At the same time, the majority recognised that characterising the damageassociated with a latent defect as economic damage assisted that conclusion. It wasonly when the defect became apparent that the market value of the property would bediminished by its consequences.61[102] Dissenting, McKay J endorsed the Pirelli approach. In doing so, and as tothe status of the "discoverability" approach in New Zealand, he observed:62In New Zealand, the test of reasonable discoverability had been adopted atfirst instance in Bowen, but did not require decision in this Court. It wasfavoured by two members of this Court in the Mount Albert Borough Councilcase, but no decision was required on that question.[103] He then went on:63The different view decided in Pirelli was considered and discussed, againobiter, by Cooke P in giving the judgment of five Judges of this Court inAskin v Knox. Reference was made to the unfairness to a plaintiff if his claimwere to be held to be statute-barred before he either knew or ought reasonablyto have known that damage had occurred. This is a view which had beenexpressed by Lord Reid in Cartledge v E Jopling & Sons Ltd and byLord Fraser of Tullybelton in Pirelli, but they regarded it as a matter forlegislation. Statutes of limitation may in such circumstances appear unfairto plaintiffs, but the question is when did the cause of action arise, not whetherthe period for bringing proceedings should be calculated from somedifferent date. The statute is clear that time runs from the accrual of thecause of action.[104] He concluded:6459 Hamlin itself was not affected by that change as the proceedings had been commenced before1 July 1993 (see Hamlin, above n 56, at 518 per Cooke P, and Building Act 1991, s 91(5)). Nor didHamlin involve contribution issues.60 At 524.61 At 522.62 At 543.63 At 543.64 At 544. the reasoning in Pirelli and in Cartledge v E Jopling & Sons Ltd is in myview compelling. The statute provides that time runs from the accrual ofthe cause of action. That has always meant the time when all the factsnecessary to establish the claim are in existence, whether or not they areknown or ought to have been discovered. [105] As will become apparent McKay J's approach later found favour with somemembers of the Law Commission and influenced the LA 2010.[106] Notwithstanding that, on appeal to the Privy Council, this Court's decisionwas upheld.65Further Law Commission reports and s 393 of the BA 2004[107] In February 2000, and a legislative response to its 1988 Report 6 still havingnot been forthcoming, the Law Commission returned to the topic. In PreliminaryPaper No 39 Limitation of Civil Actions it noted that Report 6 had not been receivedwith enthusiasm.66 It went on:67While Hamlin effectively settled New Zealand law, some members ofthe Commission consider that the decision was wrong, and that as a matter ofstatutory interpretation the dissenting judgment of McKay J is to be preferred.[108] From this point onward — and for some time — the Commission followed adifferent path. Rejecting a "discoverability" approach, the Commission preferred theapproach that the cause of action accrued not when the defect is discovered but whenall the elements of the cause of action are in existence, whether or not the claimantknows that they have a cause of action.68 Consequently, it also abandoned Report 6'srecommendation that the standard commencement date be the "date of the act oromission on which the claim is based". That approach had by then, we note, beenadopted on materially identical terms in s 91 of the BA 1991.69 Rather, and withoutexplaining why, the Commission reverted to the approach taken in the LA 1950: thatis the standard commencement date for limitation periods would continue to be that of65 Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC).66 Law Commission Limitation of Civil Actions (NZLC PP39, 2000) at [1].67 At [27].68 See [104] above.69 The only word that is different is "proceedings" in place of "claim", but as this Court noted inGedye v South, Report 6 was the likely source of the BA 1991 wording: [2010] NZCA 207,3 NZLR 271 at [36].the accrual of the cause of action. Hence the expression of the limitationcommencement date for contribution claims could also continue unchanged.[109] Notwithstanding that, the Commission did adopt Report 6's proposed generalapproach of having a primary limitation period, with the possibility of an extensionfor late knowledge, and an overarching long-stop period. It summarised itsrecommendations as follows:70We recommend that the Limitation Act 1950 be amended to:• make it clear that the cause of action accrues when all the elements ofthe cause of action are in existence, whether or not the claimant knowsthat they have a cause of action;• introduce a "reasonable discovery" test, which allows the limitationperiod to be extended beyond the normal six year period if the claimantcan show that he or she (or his or her predecessor in title) could notreasonably have known within the six year period that they had a causeof action. This makes it clear that the reasonable discovery test is anexception to the usual rule and the onus is on the claimant to proveits entitlement;• introduce a "long-stop" of 10 years from [the] time a cause of actionaccrues, beyond which a claim may not be brought (except in the case offraudulent concealment under section 28(a) or (b) of the Limitation Act1950);[110] Yet again, however, the Commission's invocation of a legislative response fellon barren ground.[111] The Commission confirmed its views in its Report No 61 Tidying theLimitation Act published in July 2000, including as to its preference for the accrualdate as the standard commencement date for limitation purposes.71[112] In doing so it noted the continuing significance of s 14 of the LA 1950,but commented:72Because there are many circumstances in which "the first point of time wheneverything has happened which would have to be proved to enable judgment70 Law Commission Limitation of Civil Actions, above n 18, at [85].71 Law Commission Tidying the Limitation Act (NZLC R61, 2000).72 At [27] (footnote omitted).to be obtained for a sum of money in respect of the claim" is the obtaining ofa judgment against the claimant to contribution or indemnity, such claims canin practice be brought and if need be litigated a very long time afterthe occurrence of many of the events on which they turn. We recommend thatthere be added to section 14 [of the LA 1950] some such words as:and such a claim shall not be brought after the expiration of2 years from the date on which the cause of action accrued.[113] By the time the BA 2004 was passed, s 91 of the BA 1991 had been amendedto clarify its application.73 It maintained the relevant date for long-stop purposes asbeing that of the act or omission, but the very open textured wording of the originalprovision had been clarified by the incorporation of references to "building work",a phrase defined in the BA 1991.74 Section 393 of the BA 2004 continued thatprovision unamended. Thus it provided:393 Limitation defences(1) The provisions of the Limitation Act 1950 apply to civil proceedingsagainst any person if those proceedings arise from—(a) building work associated with the design, construction,alteration, demolition, or removal of any building; or(b) the performance of a function under this Act or a previousenactment relating to the construction, alteration, demolition,or removal of the building.(2) However, civil proceedings relating to building work may not bebrought against a person after 10 years or more from the date of the actor omission on which the proceedings are based.The 2007 Update Report and s 34 of the LA 2010[114] The Law Commission returned to these issues in its June 2007 Update ReportLimitation Defences in Civil Cases.75 The Commission, in essence, went back to theapproach recommended in Report 6. In doing so, it recognised the inter-relationshipof the act or omission approach to the commencement of limitation periods generallyand the introduction of a discoverability/knowledge extension and the particularapproach to contribution claims.73 See s 19 of the Building Amendment Act 1993.74 Building Act 1991, s 2.75 Law Commission Limitation Defences in Civil Cases: Update Report for the Law Commission(NZLC MP16, 2007).[115] In particular, it recommended the standard commencement date as beingthe date of the act or omission on which the claim is based:59. [Report 6] recommended a universal start date – the date of the act oromission on which the claim is based. This [is] a sound start date formost claims based on a definite breach of contract or of some otherlegal or equitable obligation where something happened on a precisedate that matters. It is sound in most cases where at present the startdate is the date the cause of action accrues.60. The start date recommended in [Report 6] may be adopted for all caseswhich at present are covered by the date the cause of action accrues.Except for the torts of negligence and nuisance, this reform will notalter in substance the time within which a claim in contract or tort isto be brought. For negligence and nuisance time will run from thedate of the defendant's act or omission, not from the date damageoccurs.(Footnote omitted.)[116] But it again explained that commencement date could not apply universally toall claims:61. [Report 6] recommended six modifications to the start date prescribedas "the date of the act or omission on which the claim is based".In effect [Report 6] recognised that its recommended general start datedoes not fit all cases.62. The formula recommended by [Report 6] is not sound for all civilclaims. Some claims for relief are not necessarily based on any act oromission, although sometimes they appear to be. Although an act oromission may be involved, the essence of some claims is the seekingof relief from circumstances that have arisen or emerged. The reliefis not sought because an act or omission has caused loss, but becausean omission, often a continuing omission, calls for relief. It [is]also unsound for claims which have had specially defined start datesin the Limitation Act 1950.64. Special start dates will be needed for not only an action to set aside awill for want of capacity, but for claims to personal estate of adeceased person, for interest and rent, contribution and for set-off andcounterclaim. Relating a start date to a particular cause of action isless confusing than attempting to mould the definition of "the date ofthe act or omission on which the claim is based" to cover matters itdoes not accurately cover at all. It is recommended that special startdates be specified when the expression "the date of the act or omissionon which the claim is based" is not appropriate. (Footnote omitted.)[117] Thus the Commission again confirmed its support for a bespoke approach tocontribution claims so that limitation periods for those claims commenced on theaccrual of the cause of action. It also recommended a general long-stop commencingfrom the "act/omission" date, with the proviso that:76An ultimate period must be modified in the case of contribution claims.When a plaintiff's primary claim against a contribution claimant is not starteduntil close to the expiration of the ultimate period, the contribution claimantmay be barred by the ultimate period from bringing a contribution claimbefore the contribution claimant can bring a claim against a contributiondefendant. In that case there should be a limited extension to the ultimateperiod to enable the claim for contribution to be brought. The extensionshould be as of right rather than discretionary.[118] It described the operation of that ultimate period and "extension" as "15 years;plus extension when primary claim not fixed within 14 years from act/omissiondate".77[119] Ultimately, the LA 2010 enacted that bespoke approach for contributionclaims, but without the proposed long-stop. We again set out the terms of s 34for convenience:34 Claim for contribution from another tortfeasor or joint obligor(1) This section applies to a claim under section 17 of the Law ReformAct 1936—(a) by a tortfeasor (A) liable in tort to another person (B) inrespect of damage; and(b) for contribution from another tortfeasor (C) who is, or wouldif sued in time by B have been, liable in tort to B (whetherjointly with A or otherwise) in respect of that damage.(4) It is a defence to A's claim for contribution from C if C proves that thedate on which the claim is filed is at least 2 years after the date onwhich A's liability to B is quantified by an agreement, award, orjudgment.[120] As can be seen a two-year limitation period was adopted, starting from the datethe contribution claimant's liability is quantified by an agreement, award or judgment.76 At [84].77 At 68.[121] That approach was an exception to the general one taken by the LA 2010.The general approach is set out in s 11 of that Act. There, "money claims" havea six-year limitation period commencing from the "date of the act or omission onwhich the claim is based". There is also a three-year late knowledge period, and a15-year long-stop commencing from the same act or omission date.Our assessment of the legislative history[122] In our view, the legislative history provides very strong support forthe conclusion that, as in effect the High Court found, neither the enactment of s 91 ofthe BA 1991 nor of s 393 of the BA 2004 altered the law enacted in s 14 of theLA 1950: that is, the cause of action for a claim to contribution under the LRA 1936accrues when the liability to the original plaintiff of the tortfeasor claimingcontribution is determined, and not when the liability to that plaintiff of the tortfeasorfrom whom contribution is claimed accrued. As the Law Commission explicitlyrecognised in its proposed legislative approach in Report 6, in the case of contributionclaims, the phrase "the act or omission on which the proceedings are based" (as usedin s 393(2) of the BA 2004) is inapt in some categories of cases, including contributionclaims. As outlined above, the Law Commission recognised that such cases called fora bespoke approach, and that specific dates be specified when the expression "the dateof the act or omission on which the claim is based" is not appropriate. In relation tocontribution claims, this bespoke approach is reflected in s 34 of the LA 2010.[123] Hence, in relation to the limitation period applying to contribution claims, thebespoke provisions in LA 1950 and LA 2010 apply, rather than s 393(2) ofthe BA 2004. We reach that conclusion because, in our view, the legislative historyshows that:(a) Properly understood, the cause of action for contribution accrues on thefinding of liability, which has been the position since the enactment ofs 17(1)(c) of the LRA 1936 — see the English cases, culminating inWimpey in both the Court of Appeal and the House of Lords.7878 See above at [70]–[73].(b) In New Zealand, the enactment of s 14 of the LA 1950 removed anyambiguity as regards that matter.(c) The Law Commission has, since Report 6 in 1988, constantly affirmedits preference was to maintain that approach. That theLaw Commission did so in 1988, shortly before it supported theintroduction of a long-stop provision in the BA 1991 based onthe limitation period starting date formulation "the date of the act oromission on which the proceedings are based", suggests it did not seethat change as altering the start date of limitation periods forcontribution claims. Given the long history associated with thatapproach by then, and the Law Commission's very recent endorsementof it, it is in our view difficult to argue the contrary.(d) Whilst the legislative response to the Law Commission's continuedadvocacy of that approach was a long time coming, when Parliamentdid that approach was endorsed in its entirety, and more. The LA 2010approached the issues of latency and uncertainty as regards moneyclaims, including in building cases, by:79(i) fixing the start of applicable limitation periods as the date ofthe act or omission on which the claim is based;(ii) providing the six-year primary period from that date and athree-year late knowledge period from the knowledge date; and(iii) subjecting the three-year late knowledge period to a 15-yearlong-stop.[124] But a separate and quite different regime was enacted for contribution claims.The relevant commencement date was the accrual date — the date upon which theperson claiming contribution had been found liable to the original plaintiff.8079 Limitation Act 2010, s 11.80 Section 34(4).A two-year limitation period, beginning on that date, would apply. Moreover, anddespite the Commission's view expressed in its 2007 Update Report, no long-stopperiod would be involved.[125] The approach taken in the LA 2010 was one, in our view, intended to avoidthe very outcome that Beca argues for here: that is, a limitation defence available to itagainst the Council's claim for contribution before the cause of action for that claimhad arisen.Previous High Court decisions[126] Notwithstanding that, we face a line of High Court authority which has reachedthe opposite conclusion. For Beca, three cases were of particular significance:Klinac v Lehmann,81 Dustin v Weathertight Homes Resolution Service82 andMinister of Education v James Hardie New Zealand.83 We discuss each in turn now.Klinac[127] Klinac was an appeal to the High Court from a decision of the District Court.It was a procedurally complicated affair.84 As relevant here, Mr Klinac was suing forunpaid purchase monies. The defaulting purchaser raised defences and counterclaimsbased on pre-contractual representations and contractual warranties to the effectthe building in question complied with all regulatory requirements when it did not.The District Court decision was to the effect that the defence based on contractualwarranties was statute-barred, but that the misrepresentation defence was not.There was no appeal against the first part of the decision, but only the second.[128] The High Court agreed with the District Court that the pre-contractualmisrepresentation claim was not statute-barred, on the basis the BA 1991, s 91long-stop, being a response to the problems associated with the discoverabilityapproach, applied to claims in negligence but not in contract.85 On that basis, that81 Klinac v Lehmann, above n 49.82 Dustin v Weathertight Homes Resolution Service HC Auckland CIV-2006-404-276, 25 May 2006.83 Minister of Education v James Hardie New Zealand [2018] NZHC 22.84 Klinac v Lehmann, above n 49.85 At [61].limitation period did not apply to a claim for pre-contractual misrepresentation:moreover, and contrary to the finding in Hamilton City Council v Rogers,86 nor did itapply to a claim based on a contractual warranty.87[129] The case is relied on, more generally, as containing an accurate summary ofthe legislative history of the enactment of s 91 of the BA 1991. The Judge,Glazebrook J, reviewed that history at [13] to [26] of her judgment. We acknowledge,as the legislative history makes clear, that the enactment of the long-stop wasa response to the uncertainties associated with the discoverability approach. As noted,there were two essential elements to that long-stop: the specification of the date ofthe relevant act or omission as the commencement of that period, and the term often years chosen.[130] What in our view is also significant, however, is the importance recognised inthe Judge's analysis of the role of the Law Commission in the enactment of s 91, andof the policy background provided by Report 6. As we have already noted, the closeinvolvement of the Law Commission in the enactment of BA 1991, and s 91specifically, supports the conclusion reached by Clark J in the judgment under appeal.[131] The two High Court decisions which Beca argues are of direct relevance arethose in Dustin88 and James Hardie.89 Both, albeit as obiter in Dustin, consideredthe issue of whether s 91(2) of the BA 1991 did apply to claims for contribution.Dustin[132] Dustin was an application for judicial review of a decision of the WeathertightHomes Resolution Service. As relevant, an adjudicator had followed the decision inCromwell Plumbing Drainage & Services Ltd v De Geest Brothers Construction Ltdin which John Hansen J found that, whilst a homeowner's case against an architecturaldesigner was subject to the long-stop, the same was not the case for the Council'sclaim for contribution against that same person.9086 Hamilton City Council v Rogers HC Hamilton, A92/97, 23 April 1998.87 Klinac v Lehmann, above n 49, at [57] and [61].88 Dustin v Weathertight Homes Resolution Service, above n 82.89 Minister of Education v James Hardie New Zealand, above n 83.90 Cromwell Plumbing Drainage & Services Ltd v De Geest Brothers Construction Ltd (1995) 9[133] Courtney J resolved the application for judicial review in Dustin on the basisthat, given John Hansen J's decision, which the adjudicator was bound to follow,no error of law was involved.91 As a result, the Judge did not need to considerthe argument she had heard that Cromwell was wrongly decided. Because ofthe possibility the issue, however, would be raised on appeal or in some other case,she understandably considered it appropriate to address the issue.92 The argument shefaced was that of Beca here:93 in any civil proceedings relating to building work s 91(2) imposes along stop period of ten years or more after the date of the act or omission onwhich the proceedings are based. The claim for contribution by the Councilagainst Mr Dustin is a civil proceeding that falls within the definition of"building work" under the Building Act 1991 and has been brought more thanten years after the alleged act or omission. Therefore it is time barred.[134] The Judge accepted that interpretation meant that the cause of actionunderlying a claim for contribution could easily "accrue outside the long stopperiod".94 But in Cromwell the Judge had gone too far in saying that would haverendered the right to claim contribution found in s 17(1)(c) meaningless. Nor was itan available objection to the application of s 91(2) of the BA 1991 to claims forcontribution that the section did not specifically state it was intended to apply tosuch claims. The section was, as Beca emphasised in argument before us, inthe Judge's assessment "as plainly worded as it is possible to be".95[135] That conclusion was supported, the Judge reasoned further, by this Court'sobservations in Johnson v Watson.96 Moreover, John Hansen J's implicit conclusionthat the statutory cause of action for contribution was not a "civil proceeding" forthe purposes of s 91 of the BA 1991 had been in error. Whether the cause of actionarose at common law, by statute or by virtue of contract, its nature as a civil proceedingdid not alter. It was perfectly clear that a claim for contribution under s 17(1)(c) ofPRNZ 218 (HC) at 221.91 Dustin v Weathertight Homes Resolution Service, above n 82, at [14] and [44(a)].92 At [15].93 At [16].94 At [23].95 At [24].96 At [25], referring to Johnson v Watson [2003] 1 NZLR 626 (CA) at 629.the LRA 1936 was a civil proceeding. And the claim was properly to be regarded asone relating to building work.97[136] The Judge reasoned:[31] While the immediate subject matter of the [Auckland City Council's]claim for contribution is its own liability, rather than the building work itself,its liability does, in turn, relate to the building work as that is defined. It iswell recognised that the phrase " in connection with " has a very widemeaning and requires merely a relationship between one thing and another In my view it easily accommodates a claim for contribution that is based onthe claimant's own liability for building work. I therefore consider thatthe [Auckland City Council's] claim must be viewed as a civil claim relatingto building work for the purposes of s 91(2) [of the] Building Act 1991.[137] The Judge also placed considerable emphasis on her understanding ofthe policy considerations that underpinned s 91(2). She wrote:[22] It is clear from this passage that [John Hansen J] was influenced in hisdecision by the perception that if s 91(2) [of the] Building Act 1991 applied itwould truncate the statutory period allowed for claiming contribution so as torender s 17(1)(c) [of the] LRA meaningless in all cases relating to buildings.It is, of course, true that the effect of s 91(2) [of the] Building Act 1991 is totruncate the period within which claims relating to building work can bebrought. But this is not a valid reason for not applying the section to claimsfor contribution. The objective of a long stop period is to create finality bypreventing claims being brought outside it. The inevitable result is that some,otherwise valid, claims will be precluded. However, that result is inherent inthe concept and operation of the long stop period. Its purpose is to ensurefairness to all parties, given the effect of time on the freshness of memoriesand availability of witnesses. Further, it gives certainty for intendeddefendants so that they can plan such things as document destruction andliability insurance. These issues are just as relevant in the context of a claimfor contribution as in a primary claim.[138] We agree with the Judge's conclusion that a claim for contribution in thesecircumstances is a civil proceeding relating to building work. We are, however, unableto endorse her substantive conclusion noting, in particular, she did not havethe opportunity to review the legislative history in depth. Most importantly,the Law Commission's recognition — prior to its support of the s 91 long-stop — ofthe inaptness, in the case of contribution claims, of use of the phrase "the date of the act97 At [28]–[30].or omission on which the claim is based" was not brought to her attention. On thatpoint she felt able to conclude, referring to the Commission's Report No 61:98There is no indication that the effect of the long stop period was specificallyconsidered and in the absence of any such indication there is no reason to thinkthat the Law Commission was concerned about its effect on claimsfor contribution.[139] We do not think that conclusion can be supported by the full legislative history,which we have now had the opportunity to consider in detail, as did the High Courtbelow.[140] Rather the position is that the Law Commission, at the time of Report 6 in 1988and thereafter, paid ongoing attention to limitation issues as regards claims forcontribution. Throughout that period, and as reflected in the LA 2010, it supportedand preserved the interpretation of s 17(1)(c) of the LRA 1936 as regards limitationissues (as upheld by the English Court of Appeal and the House of Lords in Wimpey),and which had been made clear in New Zealand by s 14 of the LA 1950.[141] Nor do we think the decision of this Court in Johnson v Watson was, asthe Judge thought, "helpful and apt".99[142] As relevant, the issue there was whether s 28 of the LA 1950 operated so as toextend the 10-year long-stop limitation period in the BA 1991 in circumstances offraud or concealment on the part of the defendant. Answering that question inthe negative, this Court reasoned that s 28 operated to postpone the accrual ofthe cause of action when relevant fraud had occurred.100 But, under s 91(2), the long-stop limitation period began on the date of the relevant act or omission.As the Court put it:101An act or omission occurs on a particular day. No question of extension oftime can logically arise where the starting point is measured from the day ofthe occurrence of an act or omission.98 At [35], referring to Law Commission Tidying the Limitation Act, above n 71.99 At [25].100 Johnson v Watson, above n 96, at [8].101 At [8].[143] There can be no questioning those conclusions. But they do not call intoquestion the more specific proposition regarding the commencement of limitationperiods for claims for contribution with which Johnson v Watson was not concerned.James Hardie[144] In James Hardie Fitzgerald J adopted Courtney J's reasoning from Dustin.102In doing so, the Judge referred to decisions of Randerson J in Carter Holt Harvey Ltdv Genesis Power Ltd (No 8);103 Associate Judge Faire in Davidson v Banks;104Lang J in Body Corporate 169791 v Auckland City Council;105 and Andrews Jin Perpetual Trust Ltd v Mainzeal Property and Construction Ltd.106 She citedthe following reasoning of Lang J:107[40] The principal concern that I have about the reasoning in Cromwell isthat it concentrates almost exclusively on the right of a defendant to seek acontribution from a concurrent tortfeasor, and the impact that application ofs 91(2) would have on that right. It does not place any weight at all uponthe plain and unambiguous wording used in s 91(2).[41] I consider that Parliament has worded s 91(2) and s 393(2) carefully.In using the phrase "civil proceedings", it has endeavoured to capture everyform of civil proceeding regardless of its source or makeup. Similarly, inusing the words "relating to building work" Parliament has attempted tocapture every civil proceeding that arises out of building work as that term isdefined in s 2 of the Act. If Parliament had intended s 91(2) or s 393(2) toapply only to claims between a plaintiff and a defendant, it would have usedwording that would have made that fact clear.[42] That conclusion is supported by powerful policy considerations.The enactment of s 91(2) and s 393(2) signalled that Parliament intended thatcivil proceedings relating to building work were to be subject to a 10 year longstop period. That policy decision was taken in the interests of achieving ahigher goal, and its implementation has necessarily been at the expense ofsome claims that would otherwise have been valid. I see no justification fordistinguishing in this context between a primary claim by a plaintiff againsta defendant and a claim for contribution by a defendant against a concurrenttortfeasor.102 Minister of Education v James Hardie New Zealand, above n 83, at [63].103 Carter Holt Harvey Ltd v Genesis Power Ltd (No 8) HC Auckland CIV-2001-404-1974, 29 August2008.104 Davidson v Banks HC Auckland CIV-2006-404-6150, 23 March 2009.105 Body Corporate 169791 v Auckland City Council HC Auckland CIV-2004-404-5225, 17 August2010.106 Perpetual Trust Ltd v Mainzeal Property and Construction Ltd [2012] NZHC 3404.107 Minister of Education v James Hardie New Zealand, above n 83, at [61], quoting Body Corporate169791 v Auckland City Council, above n 105.[145] Acknowledging she had little to add to that reasoning Fitzgerald J concluded:[64] In my view, to exclude contribution claims which clearly relate tobuilding work would be contrary to the plain wording of the longstopprovisions in both the 1991 and 2004 Acts, as well as the clear Parliamentaryintent which lies behind those provisions. As Andrews J noted inPerpetual Trust, there is no suggestion in the legislative history thatcross-claims as between building professionals and/or territorial authorities,or third party contribution proceedings, were to be excluded from the finalityand certainty which was sought through the longstop provision. Had such animportant and broad exclusion been intended from the otherwise plain wordsused, one might have expected Parliament to have said so expressly.Our conclusion on the limitation issue[146] We acknowledge that the analysis above has been favoured by a considerablenumber of respected High Court Judges. In our view, however, that analysis tookinsufficient account of the long-standing approach to the date of the commencementof limitation periods applying to claims for contribution and the Law Commission'sendorsement of that approach at all times and, therefore, of the inapplicability of s393(2) of the BA 2004 to claims for contribution between tortfeasors.[147] Given the specificity of the long-standing bespoke approach to contributionclaims, and again in agreement with the High Court judgment under appeal, we do notconsider that either the wording adopted by Parliament in s 91 of the BA 1991 ands 393 of the BA 2004 implied, from the plain words used, or by necessary inferenceor on any other basis, a change to the longstanding bespoke approach to limitation inthe context of contribution claims. Rather, we consider the terms of ss 91(2)and 393(2) were not intended to apply to contribution claims, but instead contributionclaims were to be governed by the then applicable LA 1950 or the LA 2010 inthe ordinary way.[148] We agree with the High Court Judge that further support for that approach canbe found in the interpretive principle of generalia specialibus non derogant. Strictlyspeaking, that principle involves the engrafting of an exception on to general wordsthat, in their natural signification, readily extend to the situation at hand.108 As wehave explained, properly understood the terms of s 393(2) do not apply to contribution108 Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington,2021) at 624.claims and therefore there is no need for an exception to be engrafted. But we doconsider the essence of that principle applies here — that is, if Parliament had intendedto do away with that bespoke approach to claims for contribution, it would have saidso in clear and unambiguous terms. Instead, Parliament confirmed that bespokeapproach in the LA 2010.[149] This interpretation, in our view, also produces an outcome which appropriatelybalances the competing policy considerations. As explained above, a right to claimcontribution between tortfeasors was not available at common law, but was introducedto remedy the injustice that may arise if a plaintiff chooses to sue only one of severalwrongdoers, and that tortfeasor is held liable for the entirety of the plaintiff's loss.As Lord Porter explained in Wimpey's case, the object of the legislation was to:109 cure this evil and to enable those upon whom the burden had been placedto recover a just proportion from those who shared the blame.[150] Of note, however, contribution claimants face a significant disadvantage thatother plaintiffs do not: the inability to commence an action without having been suedby (or having settled with) the original plaintiff. Fairness to such claimants requiresthat they be given a reasonable opportunity to commence proceedings before timeruns out.[151] The policy underpinning limitation provisions, on the other hand, is to promotecertainty and finality in litigation.[152] The legislative regime balances these competing interests by providing forfinality between the original plaintiff and the defendant(s) they choose to sue (eithervia the ordinary limitation period or the long-stop period, if it applies). In addition,defendants who are successfully sued by the original plaintiff are provided with alimited period of two years to bring their contribution claim.[153] We note finally on this issue that at the hearing counsel for the Council referredus to a number of English authorities which discuss aspects of the significance of thedistinction between the basis for a claim in negligence by a plaintiff against one of a109 George Wimpey & Co Ltd v British Overseas Airways Corporation, above n 20, at 181.number of joint tortfeasors and a claim by that one tortfeasor against others forcontribution.110 They also provided a memorandum addressing those cases. We gaveBeca an opportunity to consider those cases after the hearing and a helpfulmemorandum was provided by counsel for Beca also.[154] In our view, those cases emphasise the procedural nature of applicablelimitation periods, as between the plaintiff and a claimee tortfeasor. That is, whilst theplaintiff could not commence that claim, the substance of the claim remained.Accordingly, the defendant tortfeasor's claim for contribution, to the extent it reliedon a liability to contribute based on the claimee's status as a joint tortfeasor, was notaffected by the existence of that procedural bar. Those cases, therefore, are consistentwith the approach we take in this judgment to the interpretation of the phrase "act oromission" in the context of claims for contribution.The ancillary claims argument[155] That said, we agree with Beca that the High Court analysis, to the extent itrelied on the concept of ancillary claims, was not of any real assistance to the Council.[156] Rather, the concept of an ancillary claim is best understood as having its originin s 30 of the LA 1950. To explain, s 30 provided:30 Provisions as to set-off or counterclaimFor the purposes of this Act, any claim by way of set-off orcounterclaim shall be deemed to be a separate action and to have beencommenced on the same date as the action in which the set-off orcounterclaim is pleaded.[157] In other words, a defendant's claim for set-off or counterclaim againstthe plaintiff could not be defeated by a limitation defence where, by dint of the latedate of the bringing of the plaintiff's claim, the limitation period arising as regardsthe claim for set-off or counterclaim could be argued to have run out beforethe defendant/counter-claimant had brought that claim.110 RG Carter Building Ltd v Kier Business Services Ltd [2018] EWHC 729 (TCC), [2018] 1 WLR4598; Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd [2005] EWCA Civ1408, [2006] QB 808; South West Strategic Health Authority v Bay Island Voyages [2015] EWCACiv 708, [2016] QB 503; and Bellefield Computer Services Ltd v E Turner & Sons Ltd [2002]EWCA Civ 1823, [2002] All ER (D) 272 (Dec).[158] In Report 6 the Law Commission favoured a more liberal approach. It said:111After proceedings have been commenced, ancillary claims (includingcounterclaims, third party claims, and additional or alternative causes ofaction) related to or connected with the act or omission on which the originalclaim is based should be determined free from any standard limitation defence(but not a "long stop" defence) unless the original claim is or could have beendefeated by such a defence.[159] In other words, the s 30 approach would no longer be limited to set-off orcounterclaims only.[160] That is, as best as we can tell, the origin of the term "ancillary claim" where itnow appears in the LA 2010. But the LA 2010 does not go as far asthe Law Commission concluded was appropriate in Report 6. Ancillary claims,including claims for set-off and counterclaim, are subject to the same limitationdefences as for "original" claims.112 However, where ancillary claims are barred byan applicable statutory limitation period, s 50 of the Act provides for discretionaryrelief from the operation of the statute bar where an original claim is not time-barred.[161] We accept it may be possible to characterise claims for contribution as ancillarybecause they are "relate[d] to, or connected with" the act or omission on whichanother (original) claim is based. However, it is more accurate to characterise themas original claims. First, a contribution claim is not listed in the enumeration ofthe classes of ancillary claims. Nor does s 34, in using the word "claim", expresslylimit the categorisation of a claim for contribution to being ancillary. And, as we havesaid, a claim for contribution is a separate and distinct cause of action.[162] Moreover, in circumstances in which the claim for contribution is filed beforejudgment on the original claim is determined, the contribution claim will never be outof time because time will not have started to run, and thus the discretion in s 50 willnot be engaged.111 Law Commission Limitation Defences in Civil Proceedings, above n 18, at [11].112 Limitation defences under the Act apply to a "claim", which is defined in s 4 as including ancillaryclaims. See also s 50(1)(b).[163] If the claim is filed by D1 against D2 after judgment against D1 on the originalclaim has been determined, it would seem more apt to describe D1's claim as anoriginal one, despite it being connected to the claim between P and D1. That is becausethe definition of "ancillary claim" in the LA 2010 appears to envisage D1's claimagainst D2 being lodged in the same proceeding as that between P and D1. In thosecircumstances the discretion under s 50, being available only for ancillary claims, isnot engaged either.[164] Hence our conclusion that the recognition in the LA 2010 of the concept androle of ancillary claims does not assist the Council here.The claims in tort — the summary judgment issue[165] The Council based its claims of negligence by Beca not only on the buildingwork which Beca had undertaken before the Council issued its CCCs, but also onbuilding work Beca carried out subsequently, including by:(a) monitoring and supervising the construction of the Building up to itspractical completion in August 2011; and(b) designing, monitoring and supervising work between November 2013and March 2014 after the Seddon earthquake damaged the Building,including the issue of various PSs associated with a review of aspects ofthe Building's seismic performance and subsequent remediation work.[166] Beca does not deny it carried out that building work. Rather Beca soughtsummary judgment in its favour as regards the Council's claim on two bases.First, that continuing duties only apply in construction matters until the constructionparticipant goes "off-task" or "off-duty", which Beca says it did when it issuedthe original PS4 for the Building on 12 March 2008. Secondly, Beca's uncontrovertedevidence was that the work it did following the Seddon earthquake was unrelated tothe design of the Building's superstructure, so that there could be no continuing dutyowed by Beca to the Council in relation to that work.[167] As regards its claims in negligence, the Judge noted the Council relied onfurther building work Beca had undertaken as regards not only the construction ofthe Building, but also the additional work undertaken by Beca after the Seddonearthquake. As to the former, the Council relied on various provisions ofthe contractual documentation as evidencing Beca's acceptance of an ongoing duty ofcare applying after, in effect, the issue of the PS4.113[168] The Judge acknowledged certain interpretation difficulties with that argument.At the same time, the Judge accepted the Council's submission that the full extent ofBeca's involvement with the Building after the Seddon earthquake would only becomeclear following discovery.114 Moreover, and notwithstanding Beca's evidence,the Council relied on documents that indicated Beca's work at that time related tothe seismic performance of the substructure and superstructure of the Building.115On that basis she concluded, after a relatively brief analysis:[87] In the end, Beca has not shown on the balance of probabilities thatthe Council cannot succeed. I am unable to be confident of material facts.In those circumstances, the summary judgment procedure is inappropriate.[169] At the hearing of this appeal, the parties acknowledged the principal issue forthem was that relating to the application or not of the long-stop limitation. In thatcircumstance, we can address succinctly the issues raised by the Council's claim ofduties as regards its actions in negligence.[170] The Council's claim against Beca under this head is, essentially, that Beca'sduty of care to it did not cease on the issuance of the PS4 for the substructure andsuperstructure on 12 March 2008. Beca was not "off-task" or "off-duty", to use Beca'swords, at that point. Rather, the Council says Beca's duty extended beyond that date,including in its monitoring and supervising of the Building's construction untilpractical completion in August 2011, and its work between November 2013 andMarch 2014 following the Seddon earthquake.113 Judgment under appeal, above n 2, at [82]–[83].114 At [84]–[85].115 At [86].[171] As regards the continuing duty issue, Mr Ring submitted that Beca hadprovided "effectively unchallenged" evidence that showed the alleged continuingduties could not exist. In that context the Judge should have been satisfied onthe evidence that Beca had discharged its summary judgment onus in respect ofthe Council's continuing duties claim.[172] It is possible to divide the continuing duties allegations into three periods:(a) First, up to 12 March 2008, which covers Beca's designing ofthe substructure and superstructure, issuing of the PS1 andsubsequently its issuing of the PS4 when it finished monitoringconstruction of those elements.(b) Secondly, between 12 March 2008 and August 2011, during which timeBeca carried out the designing and monitoring of the installation ofthe fit-out leading up to the practical completion of the Building.(c) Thirdly, between November 2013 and March 2014, during which timeBeca provided regulatory upgrade services for in-ceiling seismicrestraints following the Seddon earthquake.[173] To the extent that the Council's claims are based on acts or omissions asbetween Beca and the Council, they will be statute-barred if those acts or omissionsoccurred more than 10 years before the issue of the proceeding (in negligence) on9 March 2020. To the extent they are not, they will not be statute-barred, subject toordinary Limitation Act provisions.116[174] The Council accepts that if its claims were based only in respect of the firstperiod, they would be barred by the long-stop. As its claims are not so based, questionsof limitation depend on the precise factual circumstances of this case. We agree.116 Building Act 2004, s 393(1). As noted, under s 59 of the LA 2010 causes of action based on actsor omissions occurring before 1 January 2011 are to be dealt with in accordance with the LA 1950.[175] Moreover, there are issues of law which require determination, includingthe novel one as to whether there is such an ongoing duty of care as claimed in respectof the second period. Beca placed considerable emphasis on the submission that theJudge should have accepted "uncontradicted" evidence from a Mr Mathew Lander thatthe services Beca provided after 12 March 2008 were unrelated to the allegedsuperstructure defects because there was no contrary evidence from the Council.However, it seems to us that accepting that evidence now would be premature.Discovery is yet to be completed and the Council's claims could yet be amended.[176] Like the High Court Judge, we simply do not have a sufficient understandingof the factual circumstances relating to those claims to reach the conclusion necessaryto grant Beca summary judgment, whether or not those acts or omissions involved abreach of a continuing duty or of a duty which arose in the circumstances giving riseto the act or omission alleged to represent the breach of duty.Result[177] The appeal is dismissed.[178] Reflecting the views on costs of both parties at hearing, we order that theappellant must pay the respondent costs for a complex appeal on a band B basis andusual disbursements.Solicitors:Chapman Tripp, Wellington for AppellantDarroch Forrest Lawyers, Wellington for Respondent