BODY CORPORATE 341188 v KELLY [2014] NZHC 1454

BODY CORPORATE 341188 v KELLY [2014] NZHC 1454

There is a serious question to be tried that the respondents' construction caused ongoing water ingress and physical damage and that s80(1) may apply; damages are inadequate and the balance of convenience favors granting interim equitable relief tailored to preserve the status quo and prevent further harm — namely immediate remedial waterproofing, mandatory shrinkwrapping under agreed specifications, a limited stop-work order, retention of a qualified project manager, and financial security for expert costs — rather than a complete long-term stop-work order requested by applicants.

Citation
[2014] NZHC 1454
Parties
First Plaintiff: Body Corporate 341188; Second Plaintiffs: Darren Cottingham and Michael Elliott as trustees of the Lincoln Trust; First Defendant: Stephen Robert Kelly and The Final Hargreaves Trust Company Limited; Second Defendant: Allenby Group NZ Ltd; Third Defendant: Social Impact Strategies Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 June 2014
Procedural Posture
Interim Injunction Under the Unit Titles Act 2010 (water Ingress and Construction Dispute) / Interim Application/hearing (orders Made 26 June 2014)
Outcome
Interim equitable orders granted (limited mandatory and prohibitory relief) directing remedial waterproofing, shrinkwrapping, stop-work subject to exceptions, project management and security for expert costs; costs reserved.
Legal Topics
Interim Injunction, Mandatory Injunction, Water Ingress, Unit Titles Obligations S80, Negligence, Nuisance, Shrinkwrap Remedial Measure, Project Management on Construction Sites
Property Law Construction Law Tort Law Civil Procedure Insurance Law Interim Injunction Mandatory Injunction Water Ingress +5 more

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Parties

Body Corporate 341188

First Plaintiff

Darren Cottingham and Michael Elliott as trustees of the Lincoln Trust

Second Plaintiffs

Stephen Robert Kelly and The Final Hargreaves Trust Company Limited

First Defendant

Allenby Group NZ Ltd

Second Defendant

Social Impact Strategies Limited

Third Defendant

Procedural Posture

Interim Injunction Under the Unit Titles Act 2010 (water Ingress and Construction Dispute) / Interim Application/hearing (orders Made 26 June 2014)

Legal Issues

  1. 1 Whether respondents' construction caused ongoing water ingress and damage
  2. 2 Whether s80(1) Unit Titles Act 2010 obligations apply to future development units 'in use' for construction
  3. 3 Whether plaintiffs have a serious question to be tried in negligence and nuisance

Ratio Decidendi

There is a serious question to be tried that the respondents' construction caused ongoing water ingress and physical damage and that s80(1) may apply; damages are inadequate and the balance of convenience favors granting interim equitable relief tailored to preserve the status quo and prevent further harm — namely immediate remedial waterproofing, mandatory shrinkwrapping under agreed specifications, a limited stop-work order, retention of a qualified project manager, and financial security for expert costs — rather than a complete long-term stop-work order requested by applicants.

Court Disposition

Interim equitable orders granted (limited mandatory and prohibitory relief) directing remedial waterproofing, shrinkwrapping, stop-work subject to exceptions, project management and security for expert costs; costs reserved.

Orders

  • Respondents to urgently (by 5.00 pm 18 June 2014) undertake remedial work to temporary waterproofing to reinstate the waterproofing directed by the expert (Mr Alvey).
  • Respondents to engage Scaf-Wrap to undertake shrinkwrapping programme in accordance with the quoted programme and Millic Auckland Ltd details; programme to commence toward end of week commencing 16 June and to be completed by 27 July 2014 (weather permitting), and respondents to pay contractors by due date and...