Trott v Barnett [2017] NZHC 478

Trott v Barnett [2017] NZHC 478

Given the live factual issues on the pleadings and probative Incodo reports showing indicators of water ingress and decay, the court found invasive testing necessary to enable proper determination under r 9.34; applicant's undertaking as to damages and willingness to fund testing removed a barrier to ordering testing; court appointed an independent expert nominated by the applicant, limited testing to specifically identified locations derived from the Incodo reports and Probett affidavit, allowed opposing experts to observe only, and ordered that the plaintiff bear testing costs subject to recovery in substantive proceedings.

Citation
[2017] NZHC 478
Parties
Plaintiff: Michaelena Mary Trott; First Defendant: Deborah Josephine Barnett; Second Defendant: Elaine Lillian Smith
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 March 2017
Procedural Posture
Civil Weathertightness/invasive Testing Application Arising From Lease Dispute / Interlocutory Application Under R 9.34 High Court Rules 2016
Outcome
Application granted in part — invasive water‑tightness testing ordered with prescribed scope and conditions.
Legal Topics
Invasive Testing Orders, Lease Obligations, Weathertightness and Mould, Undue Influence and Unconscionable Bargain, Unjust Enrichment, Expert Appointment, Costs
Property Law Contract Equity Civil Procedure Construction/building Law Evidence Invasive Testing Orders Lease Obligations +5 more

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Parties

Michaelena Mary Trott

Plaintiff

Deborah Josephine Barnett

First Defendant

Elaine Lillian Smith

Second Defendant

Procedural Posture

Civil Weathertightness/invasive Testing Application Arising From Lease Dispute / Interlocutory Application Under R 9.34 High Court Rules 2016

Legal Issues

  1. 1 Whether invasive water‑tightness testing should be ordered under r 9.34 High Court Rules
  2. 2 Scope of any permitted invasive testing
  3. 3 Who should be appointed to conduct testing and who should pay

Ratio Decidendi

Given the live factual issues on the pleadings and probative Incodo reports showing indicators of water ingress and decay, the court found invasive testing necessary to enable proper determination under r 9.34; applicant's undertaking as to damages and willingness to fund testing removed a barrier to ordering testing; court appointed an independent expert nominated by the applicant, limited testing to specifically identified locations derived from the Incodo reports and Probett affidavit, allowed opposing experts to observe only, and ordered that the plaintiff bear testing costs subject to recovery in substantive proceedings.

Court Disposition

Application granted in part — invasive water‑tightness testing ordered with prescribed scope and conditions.

Orders

  • Mr Chris Phayer of Solve IT Building Surveyors Ltd is appointed as independent expert to carry out the water‑tightness testing.
  • Defendants must permit plaintiff and her representatives and Mr Phayer (and his assisting employees) to enter the Property on reasonable notice (not less than 7 days) to carry out invasive testing.