BODY CORPORATE 325261 v STEPHEN MITCHELL ENGINEERS LTD & ORS [2014] NZHC 761 [14 April 2014]

BODY CORPORATE 325261 v STEPHEN MITCHELL ENGINEERS LTD & ORS [2014] NZHC 761 [14 April 2014]

Leave to review was refused because, although the delay was minimal and explained, there was not a reasonable prospect that the Associate Judge's decision would be found wrong on review; the defendants' limitation and patent-defect arguments were novel, factually and legally complex, and not clearly untenable; the...

Source-derived case information.

Citation
[2014] NZHC 761
Parties
First Plaintiff: Body Corporate 325261; Second Plaintiffs: Rodney William Cooke and Others; Sixth Defendant: Stephen Mitchell Engineers Limited; Seventh Defendant: Stephen Robert Mitchell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 April 2014
Procedural Posture
Civil Building/negligence / Application for Leave to Review Associate Judge Decision (pre Trial)
Outcome
Application for leave to review dismissed
Legal Topics
Leave to Review Associate Judge Decision, Strike Out Application, Limitation Periods, Latent Vs Patent Defects, Building Act S393(2) Long Stop, High Court Rules R2.3/r7.7
Civil Procedure Building Law Tort/negligence Limitation Law Leave to Review Associate Judge Decision Strike Out Application Limitation Periods Latent Vs Patent Defects +2 more

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Parties

Body Corporate 325261

First Plaintiff

Rodney William Cooke and Others

Second Plaintiffs

Stephen Mitchell Engineers Limited

Sixth Defendant

Stephen Robert Mitchell

Seventh Defendant

Procedural Posture

Civil Building/negligence / Application for Leave to Review Associate Judge Decision (pre Trial)

Legal Issues

  1. 1 Whether leave to review out of time should be granted under High Court Rules r2.3(2)
  2. 2 Whether parts of the plaintiffs' negligence claims should be struck out as statute-barred under the Limitation Act 1950 or Building Act s393(2)
  3. 3 Whether alleged structural-design defects were latent or patent for accrual of cause of action

Ratio Decidendi

Leave to review was refused because, although the delay was minimal and explained, there was not a reasonable prospect that the Associate Judge's decision would be found wrong on review; the defendants' limitation and patent-defect arguments were novel, factually and legally complex, and not clearly untenable; the high bar for strike-out and the need to preserve an imminent trial fixture meant the interests of justice favored denying leave.

Court Disposition

Application for leave to review dismissed

Orders

  • Tentative fixture for review on 26 and 27 May 2014 vacated
  • Plaintiffs awarded costs on a category 2B basis with disbursements to be fixed by the Registrar