HERMANN v WEATHERTIGHT HOMES TRIBUNAL [2018] NZHC 1843

HERMANN v WEATHERTIGHT HOMES TRIBUNAL [2018] NZHC 1843

The Tribunal correctly found inordinate and inexcusable delay and material prejudice to the defendant, but applied an incorrect and unduly narrow test by asking whether the defendant was 'entirely prevented' from defending; the correct approach requires a full 'standing back' assessment of the interests of justice...

Source-derived case information.

Citation
[2018] NZHC 1843
Parties
First Applicant: David Thomas Hermann; Second Applicant: Hermann Enterprises Limited; First Respondent: Weathertight Homes Tribunal; Second Respondent: Julie Martin; Belinda Martin; Noel Cave as trustees of the Julie M Martin Trust and the Belinda M Martin Trust; Third Respondent: Graeme John Evans; Fourth Respondent: Bruce Povey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 July 2018
Procedural Posture
Judicial Review of Weathertight Homes Tribunal Decision Under Judicial Review Procedure Act 2016 / Application for Review of Procedural Order (removal/striking Out Application); Direction to Reconsider
Outcome
Procedural Order 4 set aside as invalid; matter remitted to Weathertight Homes Tribunal for reconsideration of the removal application applying the correct 'interests of justice' assessment
Legal Topics
Delay and Prejudice, Striking Out/party Removal, Procedural Fairness, Powers of Inference, Remedies Remittal/reconsideration, Costs
Administrative Law Judicial Review Construction Law Statutory Adjudication Tribunal Procedure Delay and Prejudice Striking Out/party Removal Procedural Fairness +3 more

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Parties

David Thomas Hermann

First Applicant

Hermann Enterprises Limited

Second Applicant

Weathertight Homes Tribunal

First Respondent

Julie Martin; Belinda Martin; Noel Cave as trustees of the Julie M Martin Trust and the Belinda M Martin Trust

Second Respondent

Graeme John Evans

Third Respondent

Bruce Povey

Fourth Respondent

Procedural Posture

Judicial Review of Weathertight Homes Tribunal Decision Under Judicial Review Procedure Act 2016 / Application for Review of Procedural Order (removal/striking Out Application); Direction to Reconsider

Legal Issues

  1. 1 Whether the Tribunal erred in assessing the length of delay between assessor's report and adjudication and the resulting prejudice
  2. 2 Whether prejudice to the defendant was 'serious' or 'material' sufficient to justify removal
  3. 3 Whether the Tribunal applied an incorrect or unduly high test ('entirely prevented') when considering the interests of justice

Ratio Decidendi

The Tribunal correctly found inordinate and inexcusable delay and material prejudice to the defendant, but applied an incorrect and unduly narrow test by asking whether the defendant was 'entirely prevented' from defending; the correct approach requires a full 'standing back' assessment of the interests of justice considering both parties' conduct (including claimant's failure to notify and permit inspection); Procedural Order 4 set aside and matter remitted for reconsideration in light of that proper test.

Court Disposition

Procedural Order 4 set aside as invalid; matter remitted to Weathertight Homes Tribunal for reconsideration of the removal application applying the correct 'interests of justice' assessment

Orders

  • Procedural Order 4 declared invalid and set aside.
  • Direct the Weathertight Homes Tribunal to reconsider and determine the first and third respondent's application dated 8 September 2017 in accordance with the consideration set out at [17] of the judgment.