BODY CORPORATE 449665 v CMP CONSTRUCTION LTD [2023] NZHC 449

BODY CORPORATE 449665 v CMP CONSTRUCTION LTD [2023] NZHC 449

Leave was granted for the late summary judgment application but on the merits the Court found it was reasonably arguable the plaintiffs' late knowledge arose no earlier than October/November 2019 (and in any event not proved to be earlier than three years before issue). CMP therefore failed to prove the s11(3) defence that proceedings were filed at least three years after the late knowledge date and summary judgment/strike out was dismissed.

Citation
[2023] NZHC 449
Parties
First Plaintiff: BODY CORPORATE 449665; Second Plaintiff: BISHOP GROUP LIMITED; First Defendant: CMP CONSTRUCTION LIMITED; Second Defendant: AUCKLAND COUNCIL
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 March 2023
Procedural Posture
Negligence / Summary Judgment/strike Out Application
Outcome
CMP's application for summary judgment and strike out dismissed; leave granted to bring summary judgment application after filing statement of defence; costs reserved
Legal Topics
Late Knowledge, Limitation Act 2010 S11, Limitation Act 2010 S14, Summary Judgment, Strike Out, Waterproofing Defect Liability
Negligence Limitation of Actions Civil Procedure Construction Defects Late Knowledge Limitation Act 2010 S11 Limitation Act 2010 S14 Summary Judgment +2 more

Case Brief

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Parties

BODY CORPORATE 449665

First Plaintiff

BISHOP GROUP LIMITED

Second Plaintiff

CMP CONSTRUCTION LIMITED

First Defendant

AUCKLAND COUNCIL

Second Defendant

Procedural Posture

Negligence / Summary Judgment/strike Out Application

Legal Issues

  1. 1 Whether plaintiffs acquired late knowledge under s14 Limitation Act 2010
  2. 2 Which party bears the burden of proof on late knowledge under s11 Limitation Act 2010
  3. 3 Whether the proceeding is statute-barred

Ratio Decidendi

Leave was granted for the late summary judgment application but on the merits the Court found it was reasonably arguable the plaintiffs' late knowledge arose no earlier than October/November 2019 (and in any event not proved to be earlier than three years before issue). CMP therefore failed to prove the s11(3) defence that proceedings were filed at least three years after the late knowledge date and summary judgment/strike out was dismissed.

Court Disposition

CMP's application for summary judgment and strike out dismissed; leave granted to bring summary judgment application after filing statement of defence; costs reserved

Orders

  • Pursuant to r12.4(3) High Court Rules, CMP granted leave to bring the summary judgment application after filing its statement of defence
  • CMP's application for summary judgment and/or strike out is dismissed