SNELLING V CHRISTCHURCH CITY COUNCIL HC CHCH CIV-2010-409-002344

SNELLING V CHRISTCHURCH CITY COUNCIL HC CHCH CIV-2010-409-002344 9 August 2011IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2010-409-002344UNDER s 93 of the Weathertight Homes ResolutionServices Act 2006IN THE MATTER OF an adjudication under the WeathertightHomes Resolution Services Act 2006BETWEEN GARY RICHARD SNELLINGANNE PATRICIA SNELLINGAppellantsAND CHRISTCHURCH CITY COUNCILRespondentHearing: 13 May 2011Appearances: C R Johnstone and S Waggott for AppellantsL Douglas for RespondentJudgment: 9 August 2011RESERVED JUDGMENT OF HON JUSTICE FRENCHIntroduction[1] Section 112 of the Weathertight Homes Resolution Services Act 2006 states:112 Removal of party from proceedings(1) The tribunal may, on the application of any party or on its own initiative, order that a person be struck out as a party to adjudication proceedings if the tribunal considers it fair and appropriate in all the circumstances to do so.(2) This section is subject to section 57(2). [Obligation to comply with the principles of natural justice][2] In this appeal, the key issues are:(i) As a matter of law, does the Weathertight Homes Resolution Tribunal have jurisdiction under s 112 to remove a respondent party on the grounds of the claimant‟s delay?(ii) If so, do the words "fair and appropriate" in s 112 denote a wider test than is applied by the ordinary courts when considering strike out applications for want of prosecution?(iii) On the facts of this case, was the Tribunal correct in concluding that because of the claimants‟ delay, it is now not possible to have a fair trial?Factual background[3] In 1998 the appellants, Mr and Mrs Snelling, purchased a residential property in Christchurch. The house had been constructed in 1994-1995, and a final code compliance certificate issued in November 1995.[4] In June 2002, the Snellings noticed water leaking from a lounge window. They undertook some repairs but, after watching a television programme about leaky homes, were prompted to apply to the Weathertight Homes Resolution Service for anassessor‟s report on 25 February 2003.[5] For the purposes of the 10-year „long stop‟ limitation period under the Building Act 1991,1 the filing of this application had the effect of stopping time running.2[6] The assessor‟s report was duly completed in August 2003. It advised that theSnellings had a claim which met the eligibility criteria under the Weathertight Homes Resolution Services Act3 and also recommended that a number of persons, including the Christchurch City Council, should be parties to the claim. Following1 Building Act 1991, s 91: now Building Act 2004, s 393.2 Under s 55 of the Weathertight Homes Resolution Services Act 2002, the making of anapplication for an assessor‟s report was deemed to be the filing of proceedings in a Court.3 See s 7.receipt of the report, the Weathertight Homes Resolution Service‟s evaluation panelconfirmed the claim met the eligibility criteria.[7] Under the 2002 Act, the next stage was for the Snellings to elect whether to mediate their claim or seek adjudication.[8] The Snellings were unhappy with some aspects of the assessor‟s report. Inparticular, they considered the scope of the recommended repairs to be inadequate and they also questioned the report writer‟s estimate of only $20,864 for the repair costs.[9] In December 2003 the Christchurch City Council, having now been notified of the claim, confirmed that it would be prepared to mediate. However, no mediation ever took place, principally it seems because of difficulties identifying and/or locating the other respondents.[10] There matters rested until February 2005 when the solicitors acting for the Council contacted the Weathertight Homes Resolution Service to see if the file was still active. The case manager advised that because he had been waiting for instructions from the Snellings for approximately eight months without any communication, he thought the solicitors could treat the file as closed. I pause here to interpolate that curiously it appears this advice was given without the case manager checking first with the Snellings.[11] It was common ground the Snellings would have known shortly after December 2003 that there was not going to be a mediation. Under the Act, they could then have chosen to refer the claim to adjudication.4 However, apart from talking to three builders and carrying out further temporary repairs in July 2006, the Snellings took no active steps until September 2007 when they made inquiries of the Weathertight Homes Resolution Service, who put them in touch with a specialist weathertightness consultant. By that time, the Weathertight Homes Resolution Services Act 2002 had been replaced by a new Act, the Weathertight Homes Resolution Services Act 2006.4 Weathertight Homes Resolution Services Act 2002, s 22.[12] The 2006 Act came into force on 1 April 2007.5[13] Although the Snellings‟ claim had been initiated under the 2002 Act, theeffect of the transitional provisions of the 2006 legislation meant the claim was now subject to Part 1 of the 2006 Act.6 That in turn meant the Snellings could only apply for adjudication by either filing a full assessor‟s report or repairing the house.7[14] In 2008 the Snellings undertook major repairs of the house involving a full replacement of the exterior cladding. The repairs, which cost $173,107.68, were completed in August 2008.[15] In February 2009 the Snellings engaged a consultant to prepare a report, and then in January 2010 filed an application for adjudication under the 2006 Act.[16] The claim against the Council is based in negligence. The Snellings allege inter alia that the Council was negligent in its processing of the consent application for the construction of the house, and also that it failed to inspect or adequately inspect the building during construction to ensure compliance with the Building Code.[17] They seek recovery of the cost of repairs, interest and general damages. The total claim amounts to $218,494.15.[18] In August 2010 the Christchurch City Council applied to be removed on the grounds of want of prosecution.The Tribunal decision8[19] In its decision, the Tribunal referred to Fenton v Building Code Consultants Ltd9 as authority for the proposition that in exercising its powers under s 112, the5 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007.6 Weathertight Homes Resolution Services Act 2006, ss 128, 134 and 135.7 Weathertight Homes Resolution Services Act 2006, s 60(8).8 Snelling v CCC (Removed) Procedural Order No 3 WHT TRI-2010-101-000006, 17 September2010.9 Fenton v Building Code Consultants Ltd HC Auckland CIV-2009-404-006348, 15 March 2010.Tribunal should adopt the same approach as the High Court does to strike out applications.[20] The Tribunal went on to refer to the general principles governing applications to strike out for want of prosecution, noting that striking out for want of prosecution pursuant to r 15.2 High Court Rules requires that a plaintiff be guilty of inordinate delay which is inexcusable and which has seriously prejudiced the defendant. Applying those principles to the facts of the Snellings‟ case, the Tribunal held:(a) The Snellings‟ delay after obtaining the assessor‟s report in August 2003 had been inordinate and inexcusable.(b) The fact the Council‟s building consent officer was now dead did not constitute undue prejudice to the Council.(c) However, the delay had seriously prejudiced the Council in other ways because in the intervening years the claim had increased from $20,864 to $218,494.15 and because the other respondents had become more difficult to trace and the chances of recovering contribution from them was slight.(d) It was unlikely justice could now be done.[21] The Tribunal accordingly granted the Council‟s application and ordered thatthe Christchurch City Council be removed as a party.[22] For all practical purposes, this amounted to a dismissal of the entire claim, because the Christchurch City Council is the only available respondent. Neither the Snellings nor the Council have been able to locate and serve any of the other named respondents.[23] The Snellings then filed an appeal against the removal decision to this Court under s 93(1) of the 2006 Act.[24] It was common ground that the appeal was by way of a rehearing and that the principles laid down in Austin, Nichols & Co Inc v Stichting Lodestar10 were applicable. That means I am required to undertake my own independent assessmentof the facts, always mindful of course that the onus of proving the Tribunal‟sdecision was wrong rests on Mr and Mrs Snelling.11[25] It was also common ground that this was the first time the Tribunal has used its powers under s 112 to remove a party on the grounds of delay.[26] Finally, for completeness in this recital of the background facts, I should record an objection made by Ms Douglas to my reading a brief of evidence from a Mr Hadley, which had been included in the common bundle. The objection was on the ground that the brief had not been part of the evidence before the Tribunal. Ultimately, it has not been necessary for me to make a formal ruling because, for reasons which will become apparent, the outcome of this appeal would have been the same regardless of whether the brief of evidence at issue was taken into account or not.Grounds of appeal[27] On appeal, counsel for the Snellings, Mr Johnstone, advanced a number of grounds of appeal. These may be conveniently summarised as follows:(a) There is no authority for the proposition that the Tribunal has jurisdiction under s 112 to strike out for want of prosecution. TheTribunal‟s view to the contrary is based on a misinterpretation ofFenton.(b) Section 112 should be construed having regard to the scheme and purpose of the Act, which make it clear delay and default should not be a ground for removal.10 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).11 Burns v Argon Construction Ltd HC Auckland CIV-2008-404-007316, 18 May 2009.(c) Even if delay is a ground for removal under s 112, the relevant delay should be delay after an application is made for adjudication, which in this case was January 2010.(d) The Tribunal was wrong to find the delay was either inordinate or inexcusable.(e) Even if the delay was inordinate and inexcusable, the Tribunal was wrong to find undue prejudice.DiscussionAs a matter of law, is delay in prosecuting a claim capable of being a ground for removal under s 112?[28] Section 112 is in the same terms as the equivalent provision in the 2002 Act.12 Both empower the adjudicator to order that a person be struck out as a party to adjudication proceedings if the adjudicator "considers it fair and appropriate in allthe circumstances to do so".[29] Section 112 is contained in Part 1, Subpart 8 of the Act, which deals with theWeathertight Homes Tribunal, and appears under the subheading „Tribunal‟s powers, etc, relating to adjudication proceedings‟. The provision immediately preceding itdeals with the joinder of parties.[30] There have been a number of High Court authorities which have considered the application of s 112.13 They have, however, all been in the context of decisions involving removal on the grounds of there being no arguable cause of action, including whether the claim was statute-barred. None has expressly considered whether the Tribunal has jurisdiction to remove on the grounds of delay, and to that extent it appears the Tribunal may indeed have misinterpreted Fenton.12 Weathertight Homes Resolution Services Act 2002, s 34.13 See for example Fenton v Building Code Consultants Limited; Auckland City Council v UnitOwners in Stonemason Apartment 27 Falcon Street, Parnell HC Auckland CIV-2009-404-3118,11 December 2009; Burns v Argon Construction Ltd HC Auckland CIV-2008-404-007316, 18May 2009; North Shore City Council v Wightman HC Auckland CIV-2010-404-003942, 30November 2010; Yun v Waitakere City Council HC Auckland CIV-2010-404-5944, 15 February2011.[31] In at least two decisions, however, the Court has contemplated the possibility of s 112 being invoked in circumstances other than where no arguable cause of action is disclosed.14 Unfortunately, the comments to this effect were made in passing and without specifying what the other types of cases might be.[32] Given the paucity of authority, I must therefore decide this issue having regard to the wording of s 112, the general scheme of the Act, its purposes and underlying policy.[33] In support of his contention that Parliament could never have intended delay to be a ground for removal under s 112, Mr Johnstone emphasised the investigative role of the Tribunal and the absence not only of any specific power to dismiss for want of prosecution, but also the absence of any expressed time restrictions in the legislation. He submitted that under both the 2002 and 2006 Acts, the ability of claimants to have their claim adjudicated is predicated upon a threshold factual inquiry which of necessity will take time. The Act recognises this and accordingly does not impose any specific deadlines or timetable that claimants must follow in pursuing their claim up to and through adjudication. The process expects, Mr Johnstone submitted, that once eligibility is confirmed, the Resolution Service will advise claimants on how to deal with their plight and refer them to advisors if needed. Once the adjudication claim is initiated, it is for the Tribunal to manage the claim through to determination. It is not for the claimant to progress it. If a party, including the claimant, fails to comply with a timetable direction, the Act provides for a specific sanction which is that the Tribunal can proceed to determine the claim and draw inferences from the non-compliance.15[34] Against that general legislative background and the fact that "responsibilityfor prosecuting a claim does not in fact lie with the claimant at any time of theprocess", Mr Johnstone submitted "it also accords fundamentally with natural justice that a claimant who is not subject to any timeline or directive process under statutory provision or by a „manager‟ empowered to do so, should not be retrospectively penalised at a subsequent future date for not proceeding quickly enough". As14 North Shore City Council v Wightman at [12]; Yun v Waitakere City Council at [59].15 Weathertight Homes Resolution Services Act 2006, ss 74-75.already noted, s 112 is expressly subject to the Tribunal‟s obligation to observe therules of natural justice.[35] These conclusions, Mr Johnstone argued, were further reinforced by the existence of s 56. Section 56 empowers the chief executive officer of the Department of Building and Housing to terminate a claim prior to the filing of an application for adjudication if he or she does not consider the claimant is making sufficient effort to resolve it:56 Termination of claims not pursued(1) The chief executive may, if he or she believes that a claimant who has not yet applied to the tribunal to have a claim adjudicated is not making enough effort to resolve it, give the claimant written notice that the chief executive will terminate it unless within 20 working days (or any longer period stated in the notice) the claimant either—(a) satisfies the chief executive that enough effort to resolve it is being made; or(b) applies to the tribunal to have it adjudicated.(2) The chief executive may terminate a claim unless within 20 working days (or any longer period stated in the notice) after receiving a notice under subsection (1), the claimant either—(a) satisfies the chief executive that enough effort to resolve it is being made; or(b) applies to the tribunal to have the claim adjudicated.(3) If a claim is terminated under subsection (2), no further claim may be brought under this Act in respect of the dwellinghouse (or common areas or multi-unit complex) concerned by the claimant or by his or her successor by operation of law.[36] Mr Johnstone argued that the specific should prevail over the general. Section 56 was designed to regulate delay prior to the issue of proceedings, whiledelay after issue was covered by the Tribunal‟s timetabling powers. In Mr Johnstone‟s submission, the existence of those two specific mechanisms to "hurry up" a tardy claimant meant Parliament must have intended recourse should be had to those, and not to a general provision such as s 112. Further, because s 56 was new (ie there was not an equivalent provision in the 2002 Act), that of itselfindicated that Parliament did not consider delay pre-issue was already covered by the 2002 predecessor to s 112. Otherwise, there would have been no need to introduce s 56.[37] As will be readily apparent, there is some force in Mr Johnstone‟ssubmissions. However, after very careful consideration, I have come to the clear view that the points he raises are outweighed by the following considerations:(i) The wording of s 112. The discretion conferred is expressed in extremely broad and general terms.(ii) The stated purpose of the legislation. Section 3 of both the 2002 and 2006 Acts states that the purpose is to provide owners of dwellinghouses that are leaky buildings access tospeedy, flexible and cost-effective procedures for assessment and resolution of claims relating to those buildings.(iii) As noted in Yun,16 the statutory emphasis on expedition and flexibility should inform the interpretation of the Act‟s moresubstantive, machinery provisions.(iv) It is most unlikely that Parliament would have intended that where delay meant justice could no longer be done, a respondent could still be compelled to participate in the process. Yet that is the effect of Mr Johnstone‟s submission.(v) Allowing delay to be a ground of removal under s 112 is not to deny the significant practical and emotional difficulties which the owners of leaky homes undoubtedly face. They will be a highly relevant factor in the exercise of the Tribunal‟sdiscretion. They are not, however, a principled reason for denying the existence of the discretion in the first place.16 At [9].(vi) The existence of s 56 does not justify a reading down of the unlimited and broad terms of s 112. Further, the existence of s 56 negates Mr Johnstone‟s submission that the claimantbears no responsibility for prosecuting the claim. Section 56 indicates a concern on the part of Parliament for timeliness, and a desire to streamline the process. The matters to be addressed by the chief executive in invoking s 56 are not coextensive with the considerations under s 112.[38] The combined effect of these considerations leads me to the clear view that the Tribunal did have jurisdiction under s 112 to make an order for removal based on delay in prosecuting a claim.Does the test to be applied under s 112 differ from the test applied by the ordinary courts when considering applications to strike out for want of prosecution?[39] There is a conflict of High Court authority as to whether the Tribunal is bound to follow the same approach under s 112 as the ordinary courts in strike out applications.17[40] Fortunately, it is unnecessary for me to try and resolve that conflict. The conflict arises in the different context of strike out applications on the grounds of there being no arguable cause of action.[41] Strike out for want of prosecution in the High Court is regulated by r 15.2.[42] The relevant principles are well established. The applicant must show that:18The plaintiff has been guilty of inordinate delay.Such delay is inexcusable.The delay has seriously prejudiced the defendant.17 Yun v Waitakere City Council; cf Fenton v Building Code Consultants Ltd.18 Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC).The over-riding consideration is whether justice can be done despite the delay.[43] „Inordinate‟ has been defined as a period of time which has elapsed which is materially longer than the time usually regarded by the Courts and the profession as an acceptable period of time.19[44] In my view, these principles neatly encapsulate what would be fair and appropriate in all the circumstances. If the Tribunal concluded that justice could still be done notwithstanding delay, it would in my view be unthinkable that the Tribunal could nevertheless remove a party. Conversely, if it was satisfied justice could not be done, it would be a perverse result for it to withhold removal.[45] In short, in determining what is fair and appropriate in the case of applications based on delay, the Tribunal should apply the principles articulated inLovie.Was the delay in this case inexcusable and inordinate?[46] The authorities draw a distinction between delay before the issue of proceedings (pre-issue) and delay after the issue of proceedings (post-issue).20By itself, delay prior to the issue of proceedings cannot constitute inordinate and inexcusable delay for purposes of a strike out application.If such delay has occurred, further delay after issue of proceedings will be looked at more critically by the Court and will be regarded more readily as inordinate and inexcusable than if the proceeding had been commenced earlier.The defendant must show prejudice caused by the post-issue delay. If, however, the defendant has suffered prejudice as a result19 Tabata v Hetherington (1983) Times 15 December 1983 (CA).20 Lovie v Medical Assurance Society New Zealand Ltd at 253.of pre-issue delay, he will need to show only something more than minimal additional prejudice to justify striking out the proceeding.It is the cumulative effect of delay that must be considered.[47] Mr Johnstone argued that the pre-issue delay was the period up until 2010. That meant the post-issue delay was only a matter of months, during which time the Snellings were active.[48] I do not accept that analysis. The critical date must be the date the application was made for an assessor‟s report in 2003. Any other approach smacks of the Snellings trying to have their cake and eat it too. That was the date the claim was initiated and the date time stopped running for the purposes of the limitation period. It is the date which is deemed to be the date of filing of proceedings.[49] To look at it another way, had no steps been taken under the 2002 legislation, the claim would have been statute-barred in 2005, ie before the date the 2006 Act came into force.[50] Pre-issue delay in my view therefore relates to the period before February 2003.[51] As the Tribunal noted, once the Snellings became aware of the leaks, they took steps within a reasonable time to obtain an assessor‟s report.[52] There is therefore no significant pre-issue delay, or at least no inexcusable delay. While 2003 was eight years into the 10-year limitation period, the Snellings had no reason to believe they had a problem until June 2002.[53] After receipt of the assessor‟s report, however, over six and a half yearselapsed before the Snellings filed the application for adjudication. That on anyone‟sview of it is inordinate delay.[54] In his affidavit, Mr Snelling gives a number of explanations for the delay. These include financial difficulties, a marriage break-up, the embarrassment ofpurchasing a leaky home and difficulties in locating a builder or specialist in whom they had confidence.[55] However, in my view these are not compelling explanations for such a long period of inaction. The Snellings did not seek the advice of the Weathertight Homes Resolution Service for many years. Had they done so, they could well have been put in touch with skilled experts much earlier than September 2007. Nor did the Snellings take any steps to notify the Council that they considered the claim was alive. Contrary to a submission made by Mr Johnstone, the fact of remedial work being carried out in 2008 could not constitute notice of the claim by the Snellings to the Council. I also agree with Ms Douglas that it was not for the Council to prod a sleeping claimant into action.21[56] Mr Johnstone made much of the fact that under the 2006 legislation it is not possible to lodge a claim for adjudication until the claimant has either carried out repairs or obtained a full assessor‟s report (as opposed to an eligibility report). He contended that although the Snellings had an eligible claim, they were therefore not in a position to apply for adjudication until 2008 at the earliest. However, that argument is somewhat disingenuous. The fact is, the Snellings could have satisfied either of the two prerequisites much earlier than they did, not least of all because for all practical purposes the assessor‟s report they had obtained in 2003 was a very detailed one, and in all respects bar one would have qualified as a full report under the new legislation. It would have been a relatively simple matter for the Snellings to obtain an updated report or seek a full report.[57] In my view, the explanations offered do not sufficiently excuse the inordinate delay.[58] I am satisfied on the facts that there has been inordinate and inexcusable delay as the Tribunal found.21 Shaw v Wellcome NZ Ltd HC Hamilton A219/85, 28 February 1995.Has the Council been seriously prejudiced by the delay?[59] At the hearing before the Tribunal, the Council argued that it was seriously prejudiced because two key witnesses were unavailable, namely the Council employee responsible for issuing the building consent and the building inspector who had undertaken the majority of the inspections of the building as it was being constructed, and who had signed the project off as complete. The building inspector had retired in 2003 and could no longer be located. The building consent officer had died in June 2006.[60] As I have already mentioned, the Tribunal did not accept that the death of the building consent officer constituted undue prejudice. The decision does not discuss the unavailability of the building inspector, other than to say his availability was contested.[61] On appeal, Ms Douglas argued that the acts or omissions of these two individuals lie at the heart of the case and accordingly their unavailability means the Council is "crippled in its ability to properly defend a negligence claim against it". The prejudice, she contended, was compounded by the inability to locate and obtain information from other potential respondents who were directly involved in the construction of the building.[62] I disagree.[63] Apart from anything else, it appears the Council has not been particularly active in looking for the retired building inspector. The Snellings‟ lawyers have provided an address in Hanmer Springs, but this has not been pursued.[64] In any event, even if he is unable to be found, his absence and that of the deceased building consent officer does not in my view constitute undue prejudice for the purposes of a removal application. The reality is that in all likelihood, even if the two were available and the case had been heard in 2003, neither would have had any actual memory of the events in issue but would been entirely reliant on written records. There is no suggestion that any key records have been lost. Nor is there any suggestion that the Council is unable to adduce evidence about its generalpolicies and practices in the mid-1990s. Whether the building consent should or should not have been issued will turn on expert assessment of the documents filed by the builder or building owner in 1994. That is an exercise that is still able to be done. Similarly, the inspection records will still be able to be assessed and determinations made as to whether or not and when the relevant defects would have been able to be seen by a reasonably prudent inspector.[65] Significantly, too, the Council‟s affidavit evidence in support of theapplication for removal does not identify any specific evidence which either of these two men would have been able to give, and which would have been pivotal.[66] I therefore find that the non-availability of the two witnesses does not unduly prejudice the Council.[67] Turning then to the other matters relied upon by the Tribunal.[68] The fact that the amount of a claim has substantially escalated during the course of a proceeding is a matter which may support a finding of serious prejudice.22[69] However, in my view that is not so in this case.[70] This is not a situation where the delay has resulted in the house deteriorating and causing new defects to be created which had not existed before. The difference between the 2003 estimate and the actual costs in 2008 is the result of increased building costs and a decision about the scope of the repairs. It will still be possible for the Council (who after all issued the consent for the 2008 repairs and inspected the work) to argue that the re-clad was an unnecessary Rolls Royce response and that more limited, targeted repairs would have been sufficient. That is a very common argument raised by councils in these sorts of cases. As for increases in building costs, these are easily able to be calculated and may be taken into account in quantifying any award should the Tribunal consider that necessary. The fact of the increases are certainly not something that in my view would preclude a fair trial.22 Fitzgerald v Beattie [1976] 1 NZLR 265 (CA) at 269; Lysaght v NZ Insurance Co Ltd HC Auckland A1021/81, 16 January 1990.[71] As for the loss of the right to seek contribution from a co-defendant or respondent, I accept that this too is a matter which has been held capable of amounting to undue or serious prejudice for the purposes of the strike out rule.23[72] However, Ms Douglas eschewed any reliance on the loss of the ability to seek contribution from other respondents as a ground of prejudice. That concession was no doubt made in the face of the evidence which suggests that even back in 2003 the other respondents were unable to be found. There is no evidence as to exactly when either party initiated inquiries about other potential respondents, but clearly there were problems from the outset, compounded of course by the fact the Snellings were not the original owners. The assessor had named the wrong person as the buildingcontractor in his 2003 report, while the case manager‟s February 2005 email to the Council‟s solicitors advised that "the majority of the parties are either unknown orunable to be located".[73] I have come to a clear view that the Tribunal was wrong to find that the Council has been seriously prejudiced, and wrong to find that justice can no longer be done.Outcome[74] For the reasons traversed, I find that:(a) As a matter of law, delay or want of prosecution may be a ground for removal under s 112.(b) When considering applications for removal on the grounds of delay under s 112, the Tribunal should follow the same approach as that taken by the High Court under r 15.2.(c) On the facts of this case, it would not be fair or appropriate in all the circumstances for the Christchurch City Council to be removed as a party.23 Stewart v Grey River Gold Mining Ltd HC Christchurch A517/78, 19 December 1991.[75] The appeal is accordingly allowed and the decision of the Tribunal reversed.The Council‟s application for removal is dismissed.[76] As regards the costs of this appeal, my expectation is that these will be able to be resolved by agreement between the parties.[77] If, however, agreement does not prove possible and a formal award is required, Mr Johnstone is to file submissions first, followed by any submissions in reply ten working days thereafter.Solicitors:Wynn Williams & Co, ChristchurchHeaney & Co, Christchurch