BP BERGIN AND BJ BERGIN V NORTH SHORE CITY COUNCIL & ORS AND ORS HC AK CIV 2006-404-2295

BP BERGIN AND BJ BERGIN V NORTH SHORE CITY COUNCIL & ORS AND ORS HC AK CIV 2006-404-2295

Summary judgment was dismissed because on affidavit evidence there was a real and arguable case that the Coxes had both ownership interests and sufficient involvement in subdivision, consent and construction to be liable as developers; the defendant did not prove on balance that plaintiffs cannot succeed, so claims require trial.

Citation
openlaw-fd4ec01e_d0ac_4d5e_a7cb_17d8757914a6.pdf
Parties
Plaintiff: Brian Patrick Bergin; Plaintiff: Beverly Joan Bergin; First Defendant: North Shore City Council & Ors; Second Defendant: Stewart Neville Cox; Second Defendant: Gayle Marie Cox; Third Defendant: Hibiscus Coast Properties Limited; Fourth Defendant: Sanders Premier Limited; Fifth Defendant: Richard Arthur Zgierski-Boreyko of CAD Draughting Technologies; Sixth Defendant: Gatland Roofing Contractors Limited; Seventh Defendant: Shingle & Shake Roofing Limited; Eighth Defendant: Leslie Patterson England; Ninth Defendant: Taylor Fascia (Auckland) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 April 2007
Procedural Posture
Civil / Summary Judgment Application (hearing)
Outcome
Second defendants' application for summary judgment dismissed
Legal Topics
Negligence, Developer Liability, Directors' Liability, Summary Judgment, Weathertight Homes
Tort Property Law Construction Law Civil Procedure Negligence Developer Liability Directors' Liability Summary Judgment +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Brian Patrick Bergin

Plaintiff

Beverly Joan Bergin

Plaintiff

North Shore City Council & Ors

First Defendant

Stewart Neville Cox

Second Defendant

Gayle Marie Cox

Second Defendant

Hibiscus Coast Properties Limited

Third Defendant

Sanders Premier Limited

Fourth Defendant

Richard Arthur Zgierski-Boreyko of CAD Draughting Technologies

Fifth Defendant

Gatland Roofing Contractors Limited

Sixth Defendant

Shingle & Shake Roofing Limited

Seventh Defendant

Leslie Patterson England

Eighth Defendant

Taylor Fascia (Auckland) Limited

Ninth Defendant

Procedural Posture

Civil / Summary Judgment Application (hearing)

Legal Issues

  1. 1 Whether the second defendants (Coxes) can be held personally liable as developers
  2. 2 Whether the Coxes can be held personally liable as directors of Hibiscus Coast
  3. 3 Whether the nominee trust/deed established that the Coxes were bare trustees and not beneficial owners

Ratio Decidendi

Summary judgment was dismissed because on affidavit evidence there was a real and arguable case that the Coxes had both ownership interests and sufficient involvement in subdivision, consent and construction to be liable as developers; the defendant did not prove on balance that plaintiffs cannot succeed, so claims require trial.

Court Disposition

Second defendants' application for summary judgment dismissed

Orders

  • Leave granted for filing the summary judgment application (r138 High Court Rules).
  • Application for summary judgment by second defendants dismissed.