BODY CORPORATE NO 199348 AND ORS V NIELSEN HC AK CIV 2004-404-3989

BODY CORPORATE NO 199348 AND ORS V NIELSEN HC AK CIV 2004-404-3989 28 April 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2004-404-3989BETWEEN BODY CORPORATE NO 199348 AND ORS Plaintiffs AND GREGORY CAMPBELL OLIVER NIELSEN Defendants Hearing: 28 April 2009 Counsel: C T Patterson for G Nielsen D G Heaney SC and C Goode for Auckland City Council and others Judgment: 28 April 2009(ORAL) JUDGMENT (NO. 2) OF HEATH JSolicitors: Heaney & Co, Auckland Farry & Co, Auckland Counsel: C T Patterson, Auckland[1] This proceeding arose out of the erection of a number of townhouses on a site near Newmarket Park, now known as 3 Laxon Terrace. The building occurred between May 1999 and January 2000. It transpired that, due to defective building, severe water ingress occurred. [2] Body Corporate 199348 and the individual proprietors sued a number of parties to obtain compensation for the damaged buildings. All defendants, except Mr Greg Nielsen and Mr Wayne Scarrott settled the claims. The Auckland City Council took an assignment of the rights of the Body Corporate and individual proprietors to enable it to pursue claims against remaining defendants. The claim proceeded against Mr Nielsen. [3] In a judgment given on 3 December 2008, I held that Mr Nielsen was liable, on the basis that he had assumed personal responsibility for the oversight of development work. The facts on which that decision was based and the legal principles that applied are set out fully in that judgment, which I incorporate by reference. [4] Before the hearing, Mr Nielsen had sought a number of adjournments of the proceeding. The procedural history is set out fully in paras [10]-[17] of my earlier judgment. In my judgment, I directed that Mr Nielsen must file and serve any application to issue cross claims together with an affidavit in support on or before 30 January 2009: para [84]. [5] The application was filed late. No affidavit in support has been filed and served, even as at today's date, some three months later. [6] In effect, this is an application for leave to issue the cross claim application out of time. The controlling considerations are the interests of justice generally. [7] Usually, leave will be given if there is a cause of action that a defendant can properly pursue against joint tortfeasers. But, the discretion may be exercisedagainst the defendant if there has been prejudice or undue delay and alternative remedies exist. [8] In my view, the delay by Mr Nielsen, both in respect of procedural aspects leading up to the substantive hearing in December 2008 and since 30 January 2009, can be seen as disentitling conduct. When one takes that into account against the prejudice to other defendants who have settled claims with the plaintiffs, it becomes an insuperable hurdle for the exercise of the discretion in Mr Nielsen's favour. [9] Mr Nielsen also has an alternative remedy. He remains in time to issue separate proceedings against the defendants whom he wishes to sue. That, in my view, is the appropriate course of action for him to take. [10] It follows that the application for leave to bring the cross claim application out of time is dismissed. Accordingly, no cross claims may be issued in the present proceeding by Mr Nielsen. [11] Costs are awarded in favour of the Auckland City Council, for whom Mr Heaney SC acts, on a 2B basis together with reasonable disbursements. Both costs and disbursements shall be fixed by the Registrar. Given the unusual background which needed to be traversed on the present application, I certify for second counsel. ________________________ P R Heath J