LIGHTER QUAY RESIDENTS' SOCIETY INC & ORS v WATERFRONT PROPERTIES (2009) LTD & OR [2013] NZHC 2678

LIGHTER QUAY RESIDENTS' SOCIETY INC & ORS v WATERFRONT PROPERTIES (2009) LTD & OR [2013] NZHC 2678

The Court refused to strike out the plaintiffs' principal causes of action because it is at least arguable that the Court retains jurisdiction over the subject matter, that Mr Gray's interim determination may not be final and binding if he exceeded his mandate or if the process transmogrified into an arbitral inquiry, and that the expert process as conducted was arguably incapable of resolving the contested allegations of gross misconduct. The Court struck out limited parts of the s140 claim (damages barred by s229 and relief ab initio) but otherwise dismissed the strike out application and ordered the expert proceedings stayed to avoid parallel processes.

Citation
[2013] NZHC 2678
Parties
First Plaintiff: Lighter Quay Residents' Society Inc; Second Plaintiff: Body Corporate 326496 (North at Lighter Quay); Third Plaintiff: Body Corporate 343562 (Stratis at Lighter Quay); Fourth Plaintiff: Body Corporate 358939 (Halsey at Lighter Quay); First Defendant: Waterfront Properties (2009) Limited; Second Defendant (expert): Bruce Gray QC; Third Party (disputed Assignee): Beswick Holdings Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 October 2013
Procedural Posture
Interlocutory Applications: Strike Out and Stay in Contract/fiduciary/unit Titles Act Dispute Involving Expert Determination / Interlocutory Judgment on Strike Out and Stay Applications; Expert Determination Stayed Pending Court Proceedings
Outcome
Application to strike out largely dismissed; limited parts of fifth cause of action struck (damages under s229 UTA and claim for ab initio termination); proceedings before the expert stayed; plaintiffs awarded costs 2B
Legal Topics
Expert Determination Versus Arbitration, Jurisdiction of Court V Expert, Mandate and Finality of Expert Determinations, Strike Out for Abuse of Process, Stay of Parallel Proceedings, S140 UTA Termination and Compensation
Contract Law Arbitration/expert Determination Law Civil Procedure Unit Titles Act (property Law) Fiduciary Obligations Expert Determination Versus Arbitration Jurisdiction of Court V Expert Mandate and Finality of Expert Determinations +3 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 6 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Lighter Quay Residents' Society Inc

First Plaintiff

Body Corporate 326496 (North at Lighter Quay)

Second Plaintiff

Body Corporate 343562 (Stratis at Lighter Quay)

Third Plaintiff

Body Corporate 358939 (Halsey at Lighter Quay)

Fourth Plaintiff

Waterfront Properties (2009) Limited

First Defendant

Bruce Gray QC

Second Defendant (expert)

Beswick Holdings Ltd

Third Party (disputed Assignee)

Procedural Posture

Interlocutory Applications: Strike Out and Stay in Contract/fiduciary/unit Titles Act Dispute Involving Expert Determination / Interlocutory Judgment on Strike Out and Stay Applications; Expert Determination Stayed Pending Court Proceedings

Legal Issues

  1. 1 Whether Court jurisdiction is excluded by privative expert determination clauses in management agreements
  2. 2 Whether expert (Mr Gray QC) exceeded his mandate so his interim determination is not final and binding
  3. 3 Whether the expert process permitted/required cross-examination and oral evidence and whether absence thereof invalidates the determination

Ratio Decidendi

The Court refused to strike out the plaintiffs' principal causes of action because it is at least arguable that the Court retains jurisdiction over the subject matter, that Mr Gray's interim determination may not be final and binding if he exceeded his mandate or if the process transmogrified into an arbitral inquiry, and that the expert process as conducted was arguably incapable of resolving the contested allegations of gross misconduct. The Court struck out limited parts of the s140 claim (damages barred by s229 and relief ab initio) but otherwise dismissed the strike out application and ordered the expert proceedings stayed to avoid parallel processes.

Court Disposition

Application to strike out largely dismissed; limited parts of fifth cause of action struck (damages under s229 UTA and claim for ab initio termination); proceedings before the expert stayed; plaintiffs awarded costs 2B

Orders

  • Strike out of pleaded damages under s229 of the Unit Titles Act 2010 from the fifth cause of action
  • Strike out of relief seeking termination ab initio in the fifth cause of action