The Minister of Education and Others v James Hardie New Zealand 2018 NZHC 22

The Minister of Education and Others v James Hardie New Zealand 2018 NZHC 22 [26 January 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2013-404-1899[2018] NZHC 22UNDER The Consumer Guarantees Act 1993, the FairTrading Act 1986, the Building Act 1991 andthe Building Act 2004BETWEEN THE MINISTER OF EDUCATION andOthersFirst to Fourth PlaintiffsAND JAMES HARDIE NEW ZEALANDFirst DefendantSTUDORP LIMIITEDSecond DefendantCARTER HOLT HARVEY LIMITEDThird DefendantCSR BUILDING PRODUCTS (NZ)LIMITEDFourth Defendant /continuedHearing: 28 and 29 September 2017Counsel: TC Weston QC, JRJ Knight and DJ Barr for CouncilsJG Miles QC and ED Nilsson for Carter Holt Harvey LtdNF Flanagan and J Carlyon for MinistryJudgment: 26 January 2018JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 26 January 2018 at 3:30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar ........................................................ Date..AND AUCKLAND COUNCIL AND OTHERTERRITORIAL AUTHORITIES LISTEDIN SCHEDULE 1 TO THE FIRSTAMENDED STATEMENT OF CLAIM BYTHIRD DEFENDANT AGAINST FIRSTTO FIFTIETH THIRD PARTIESFirst to Fiftieth Third PartiesCIV-2016-404-2991BETWEEN CARTER HOLT HARVEY LIMITEDPlaintiffAND AUCKLAND COUNCIL AND OTHERTERRITORIAL AUTHORITIES LISTEDIN SCHEDULE 1 TO THE PLAINTIFFS'NOTICE OF PROCEEDING ANDSTATEMENT OF CLAIMFirst to Fiftieth DefendantsContentsIntroduction ......................................................................................................... [1]Factual background ............................................................................................ [6]Nature of a contribution claim ......................................................................... [29]First and fifth grounds - prejudice by excessive delay in service of ThirdParty Notices/some of CHH's claims are time-barredCouncils' submissions ..................................................................................... [30]CHH's submissions.......................................................................................... [35]Analysis – do the Building Act longstop provisions apply to contributionclaims? ...................................................................................................... [41]Analysis – should the Third Party Notices be set aside or struck out forprejudice/abuse of process? ...................................................................... [94]Analysis – are aspects of CHH's claims so clearly statute-barred thatthey ought to be struck out? .................................................................... [122]Second ground – delay in service is an abuse of processCouncils' submissions ................................................................................... [144]CHH's submissions........................................................................................ [146]Analysis – was the delay in service of the Third Party Notices an abuseof process? .............................................................................................. [147]Third and fourth grounds – CHH's claims are not sufficientlyparticularised/no evidential foundationCouncils' submissions ................................................................................... [149]CHH's submissions........................................................................................ [157]Analysis – ought CCH's claims be struck out for lack of particulars? ......... [162]Sixth ground –Ministry and CHH's claims - "same damage" 58Councils' submissions ................................................................................... [173]CHH's submissions........................................................................................ [177]Analysis – are the Ministry and CHH's claims in relation to the "samedamage"? ................................................................................................ [180]Conclusions and orders................................................................................... [214]Costs ................................................................................................................. [216]Introduction[1] In proceeding CIV-2013-404-1899 ("Main Proceedings"), the Minister,Secretary and Ministry of Education ("Ministry") sue Carter Holt Harvey ("CHH") inrelation to allegedly defective cladding products ("Shadowclad") installed onapproximately 833 school buildings in New Zealand. In very broad terms, theMinistry seeks damages for the costs to remove and replace the Shadowclad productand also for the costs of consequent repairs where it is alleged the Shadowclad producthas allowed water to ingress, causing damage to surrounding building structures. TheCrown also points to potential health and safety issues arising as a result of theallegedly defective product permitting the growth of mould spores, with consequentadverse health implications.[2] CHH denies its Shadowclad product is defective, or that it has caused thedamage alleged. Further, it says to the extent it is liable in respect of any of the damagepleaded by the Ministry, the relevant Territorial Authorities ("Councils") areconcurrent tortfeasors from whom CHH is entitled to contribution. CHH says anydamage suffered by the Ministry has been fully or partly caused by defective buildingworks, and thus the Councils' failures in carrying out their supervision of design andconstruction of the school buildings, and ultimate sign-off through the provision of aCode Compliance Certificate ("CCC").[3] CHH has filed contribution claims against 54 Councils under s 17(1)(c) of theLaw Reform Act 1936 ("LRA") in two separate proceedings:(a) First, by way of third party notices in the Main Proceedings ("ThirdParty Notices"). CHH filed the Third Party Notices in December 2013but did not serve them until December 2016.(b) Second, by way of separate contribution claims in a proceedingcommenced by CHH on 18 November 2016, namely CIV-2016-404-2991 ("Contribution Proceedings"). The Contribution Proceedingswere also served on the Councils in December 2016.[4] The Councils now seek to set aside and/or strike out the Third Party Notices,or alternatively strike out all or parts of the Contribution Proceedings on a variety ofgrounds, including that the Councils are prejudiced by the excessive delay in theservice of the Third Party Notices; that significant aspects of CHH's claims are time-barred; and that the claims are insufficiently particularised and thus amount to an abuseof process in any event. The Councils also say that the Ministry's claims against CHHand CHH's claims against the Councils are not in respect of the "same damage", whichis a requirement for a contribution claim under s 17(1)(c) of the LRA.[5] CHH opposes the Councils' application, and in turn applies for an orderextending the time for service of the Third Party Notices and that the Main andContribution Proceedings be consolidated.Factual background[6] The relevant facts may be briefly stated.[7] As noted above, in the Main Proceedings, the Ministry sues CHH in relationto what it says is CHH's defective Shadowclad product. The Ministry's claim coversapproximately 833 school buildings throughout New Zealand. In relation to mostthough not all of the buildings, the Ministry says that not only is the Shadowcladproduct defective and likely to cause the buildings to leak in the future, but also that ithas already permitted water ingress and thus caused consequential structural damageto the buildings. As also noted earlier, the Ministry also points to related health andsafety concerns as a result of mould and spore build-up.[8] The Ministry's primary claim against CHH is in negligence, though there arealso a number of other causes of action, including under the Fair Trading Act 1986 andthe Consumer Guarantees Act 1993.[9] Shortly after the Main Proceedings were commenced, CHH filed anapplication to strike out the claim against it, primarily on the basis it was not arguablethat as a product manufacturer, it owed a duty of care to the Ministry (as the end-userof the product).[10] Pending determination of its strike out application, CHH filed the Third PartyNotices. As noted above, it did not serve the notices at that time. Rather, it took theview that it would await determination of the strike out application before doing so.CHH says that it viewed (and views) the Ministry's claim as fundamentally lackingmerit. Given the wide-ranging and substantial nature of the proceedings, they haveand will require significant resources to defend. As a result, CHH did not consider itappropriate to serve the Third Party Notices while its strike out application and anyappeals were pending. CHH says that it did not wish to put the Councils to the verysignificant cost and inconvenience of being involved with the Ministry's claims whenit considered they were likely to be struck out.[11] CHH's position in this regard was supported, to a degree, by the Ministry, as itagreed that, in return for CHH not serving the Third Party Notices while the partiesengaged in settlement negotiations, the Ministry would (if required by CHH, in theevent there was no settlement and the Councils objected to late service) consent toorders extending the time for service or granting leave for the issue of fresh third partynotices.1[12] In a judgment delivered on 4 April 2014, Asher J dismissed CHH's strike outapplication.2 In relation to the negligence cause of action, his Honour held thatalthough the matter was "finely balanced", it was arguable CHH owed the pleadedduty of care to the Ministry.3[13] CHH did not take steps to serve the Third Party Notice on the Councils at thistime. Rather, it appealed Asher J's decision. In a judgment delivered on 23 July 2015,the Court of Appeal allowed the appeal in part, in that the third cause of action(negligent misstatement) was struck out.4 However, CHH's appeal was otherwisedismissed.1 Evidently CHH has not required the Ministry to consent to its application to extend the time forservice of the Third Party Notices, as the Ministry simply abides the Court's decision on CHH'sapplication.2 Minister of Education v Carter Holt Harvey [2014] NZHC 681.3 At [72].4 Carter Holt Harvey v Minister of Education [2015] NZCA 321, (2015) 14 TCLR 106.[14] CHH again did not take steps at this time to serve the Third Party Notices onthe Councils. It sought and was granted leave to appeal the Court of Appeal'sjudgment to the Supreme Court.[15] In a judgment delivered on 29 July 2016, the Supreme Court dismissed CHH'sappeal.5 It also allowed the Ministry's cross-appeal and quashed the Court of Appeal'sorder striking out the negligent misstatement cause of action. As a result, all causesof action originally pleaded by the Ministry remain on foot. Relevant to later aspectsof this judgment, in dismissing CHH's appeal, the Supreme Court also emphasised thenature of the Ministry's claim against CHH, namely a product liability claim. In doingso, it rejected CHH's submission that at its core, the claim was a proceeding "relatingto building work".6[16] CHH thereafter took steps to serve the Third Party Notices (though this did notoccur for some months after the Strike Out Judgment). For present purposes, theCouncils accept the date of service was 16 December 2016. CHH had also by thattime commenced the Contribution Proceedings, which were served at the same timeas the Third Party Notices.[17] By application dated 15 March 2017, the Councils applied to set aside theThird Party Notices and/or strike out the Contribution Proceedings. There are sixgrounds to the Councils' application:(a) First, they are seriously prejudiced by the excessive delay in service ofthe Third Party Notices;(b) Second, the delay in serving the Third Party Notices is an abuse ofprocess in the Main Proceedings;(c) Third, the lack of sufficient particulars in CHH's claims against theCouncils renders CHH's claims vexatious or an abuse of process;5 Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 ("Strike OutJudgment").6 At [102].(d) Fourth, CHH's claims against the Councils are made with evidentialfoundation and are an abuse;(e) Fifth, claims by CHH against the Council's in respect of at least 326 ofthe school buildings in the Main Proceedings, and at least a further 90school buildings in the Contribution Proceedings, are time-barred (therelevant buildings having been completed more than 10 years beforethe Third Party Notices were filed or the Contribution Proceedingscommenced); and(f) Sixth, CHH's claims for contribution from the Councils in bothproceedings are so different from the Ministry's claims against CHHthat they cannot be sustained.[18] In response, CHH filed a cross-application dated 5 May 2017 seeking ordersextending the time for service of the Third Party Notices and/or consolidation of theMain and Contribution Proceedings. The Councils oppose that cross-application.[19] Before considering each ground of the Councils' application, I first summarisethe nature of a contribution claim. A number of the basic concepts which underpin acontribution claim are relevant to later aspects of this judgment.Nature of a contribution claim[20] CHH seeks contribution from the Councils on the basis that if CHH is liable tothe Ministry, CHH and the Councils are concurrent tortfeasors in relation to thedamage suffered by the Ministry. In other words, both CHH and the Councils areliable for the same damage.[21] Multiple defendants' liability for the same damage is based on the in solidumprinciple, namely each defendant is liable for the whole of the plaintiff's loss (referredto as "solidary liability"). That is so even if other wrongdoers might have also causedthe plaintiff's loss. This regime protects the plaintiff. As a result of solidary liability,it is irrelevant as between the plaintiff and the first defendant (D1) that the plaintiffalso has claims against D2 and D3, or that D1 may be entitled to contribution from D2and/or D3.7[22] Where D1 is found liable for the whole of the plaintiff's loss, it may seekcontribution from D2 and/or D3. At common law, such claims could not be broughtas between tortfeasors.8 This was remedied by statute, and in New Zealand,contribution claims between joint and concurrent tortfeasors are governed by s 17 ofthe LRA.[23] This relevantly provides as follows:17 Proceedings against, and contribution between, joint and severaltortfeasors(1) Where damage is suffered by any person as a result of a tort (whethera crime or not)—(c) any tortfeasor liable in respect of that damage mayrecover contribution from any other tortfeasor who is,or would if sued in time have been, liable in respectof the same damage, whether as a joint tortfeasor orotherwise, so, however, that no person shall beentitled to recover contribution under this sectionfrom any person entitled to be indemnified by him inrespect of the liability in respect of which thecontribution is sought.(2) In any proceedings for contribution under this section the amount ofthe contribution recoverable from any person shall be such as may befound by the court to be just and equitable having regard to the extentof that person's responsibility for the damage; and the court shall havepower to exempt any person from liability to make contribution, or todirect that the contribution to be recovered from any person shallamount to a complete indemnity.[24] As can be seen, any contribution must be in respect of the "same damage". Ireturn to this concept later in this judgment, as the sixth ground of the Councils'application is that CHH's contribution claims against the Councils are not in respectof the "same damage".7 Law Commission Apportionment of Civil Liability (NZLC R47, 1998) at [6].8 Merryweather v Dixon (1799) 8 D&E 186, 101 ER 1337 (KB).[25] The main alternative to solidary liability is what is known as "proportionateliability". Under this form of liability, a joint or concurrent tortfeasor is only liable tothe plaintiff for its proportionate share of the plaintiff's loss. Under proportionateliability, the risk of one defendant's "share" of the plaintiff's loss being uncollected(due to, for example, that defendant's insolvency) rests with the plaintiff.[26] It has been said that the solidary approach to liability is unfair, in that itshoulders a (solvent) defendant with the whole of the plaintiff's loss, even when otherparties have also caused that loss. In response, it is argued that proportionate liabilityintroduces into examination of the plaintiff's claim against D1 the irrelevant issue ofD2's liability to the plaintiff. This argument is bolstered by the fact that "the wholebasis of the law of civil liability is that quantification is determined not by the degreeof the defendant's fault but by the extent of injury to the plaintiff".9 It is said thisprinciple should not yield simply because there is more than one wrongdoer.10[27] There has been consideration in recent decades of moving from solidary toproportionate liability.11 The Law Commission has examined this in some detail ontwo separate occasions, but in both its reports, has recommended that solidary liabilityremain the general rule.12[28] Finally, and relevant to the first and fifth grounds of the Councils' application,the limitation period for contribution claims only commences once the claimant'sprimary liability to the plaintiff in the main claim has been determined (or settled).13[29] I now turn to the grounds of the Councils' application.9 Law Commission Apportionment of Civil Liability (NZLC R47, 1998) at [7].10 Law Commission Apportionment of Civil Liability (NZLC R47, 1998).11 For example, Australia has already moved to a proportionate liability scheme.12 Law Commission Apportionment of Civil Liability (NZLC R47, 1998); Law Commission Liabilityof Multiple Defendants (NZLC R132, 2014).13 Limitation Act 1950, s 14; Limitation Act 2010, s 34.First and fifth grounds - prejudice by excessive delay in service of Third PartyNotices/some of CHH's claims are time-barredCouncils' submissions[30] The Councils highlight that High Court Rule 4.12 requires a third party noticeto be served within 25 working days of being filed. In this case, the Third PartyNotices were not served until some three years after being filed. CHH did not seekleave for such late service.[31] The Councils acknowledge that r 1.19 permits the Court, in its discretion, toextend the time for doing any act and that the discretion may be exercised after theexpiration of the relevant time period. However, the Councils say there is not anunqualified right to an extension of time, and the Court's discretion ought not to beexercised when the failure to comply with the Rules results in prejudice.14[32] The Councils say they are seriously prejudiced by CHH's delay in serving theThird Party Notices for three reasons:(a) First, the ten-year longstop provisions in the Building Act 1991 ("1991Act") and Building Act 2004 ("2004 Act") apply to claims forcontribution. Given this, the Councils are unable to pursue fourthparties responsible for the design and construction of school buildingscompleted more than 10 years ago. The Councils say that between theissuing of the Third Party Notices (in December 2013) and service ofthe notices (in December 2016), the ten-year longstop period expiredfor contribution claims by the Councils in respect of least 49 schoolbuildings. The Councils therefore say CHH's delay in serving the ThirdParty Notices has caused prejudice because otherwise timely claimsagainst design and construction parties became time-barred.(b) Second, the Councils say that even if the ten-year longstop provisionsdo not apply (as CHH submits), there will still be significant prejudice,because the 15-year general longstop limitation period enacted in 201014 Day v Ost (No. 2) [1974] 1 NZLR 714 (SC).came into force on 31 December 2015. Accordingly, if CHH hadserved the Third Party Notices promptly in or around December 2013,the 15-year longstop limitation period would not have been in force andtherefore no longstop provision would have prevented Councils fromclaiming contribution from other parties for acts and omissions whichoccurred more than 15 years earlier.(c) Third, the Councils submit they are also prejudiced by their inability toinspect buildings which were substantially remediated or demolishedin the three-year period between the filing of the Third Party Noticesand their service in December 2016.[33] The Councils say CHH's view that the Ministry's claims were without meritand/or would be struck out did not justify the delay in service. At the very least, anysuch view could not reasonably have survived the decision of Asher J in April 2014dismissing CHH's strike out application. The Councils further submit that anypotential cost issues for the Councils had the Third Party Notices been served promptlycould have been managed by agreement, for example that no substantive defenceneeded to be pursued pending final determination of the strike out application. TheCouncils say this would have at least enabled it to take what steps it considerednecessary to protect its own position, for example by joining fourth parties andinspecting buildings that were about to be remediated or demolished.[34] The first ground of the Councils' application significantly overlaps with thefifth ground. Under the fifth ground, the Councils say a significant number of CHH'sclaims are time-barred as a result of the Building Acts' ten-year longstop provisionsapplying. The Councils say that any claim in relation to a school building where theCCC was issued more than 10 years prior to the Third Party Notices being filed areplainly time-barred and thus ought to be struck out.15 The Councils say 326 schoolbuildings fall into this category, and claims in relation to a further 90 school buildingsin the Contribution Proceedings will be also be time-barred.15 The issuing of a CCC typically being the last act by a council in relation to building works.CHH's submissions[35] CHH says the delay in serving the Third Party Notices was neither "intentionaland contumelious", nor "inordinate and excusable" and giving rise to serious prejudiceto the Councils, which might otherwise justify setting the notices aside.16 CHHsubmits there were good reasons for delaying service, given a hearing of its applicationto strike out the Ministry's claims was imminent. As noted earlier, it says service priorto final determination of the strike out application could have resulted in significantwasted costs to CHH and the Councils, had CHH's application been successful.[36] Further, CHH submits no substantial prejudice has been suffered by theCouncils in any event. It says that the 10-year longstop provisions do not apply tocontribution claims, and therefore does not prevent further contribution claims beingmade by the Councils against others. CHH says its contribution claims are not"proceedings relating to building work" for the purposes of the longstop provision, butrather are a separate statutory claim with their own separate limitation period. It saysthat particularly clear words would have been required to override the specificlimitation period for contribution claims, and the Building Acts longstop provisionssimply do not do that. CHH points to conflicting High Court decisions on this issue.17[37] CHH further says the Supreme Court's Strike Out Judgment in the MainProceedings leaves open the door to a finding that the longstop provisions do not toapply to contribution claims. CHH also refers to certain judgments from appellatecourts in the United Kingdom and Australia, which it says supports its submission thatthe longstop provisions do not apply to contribution claims.[38] In respect of the prejudice suggested by the Councils, CHH also notes theCouncils have already commenced 47 contribution claims. It also submits difficultiesin identifying or pursuing potential further contributors is not a valid ground in and ofitself to set aside or strike out of an otherwise meritorious claim in any event.16 Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 (CA) at 318, cited with approval in Bankof New Zealand v Savril Contractors Ltd [2005] 2 NZLR 475 (CA) at [51].17 There is no senior appellate authority.[39] Finally, CHH says that even if the longstop provisions do apply to contributionclaims, it would not be appropriate to strike out any of the claims in this case. That isbecause the factual basis for the dates upon which the relevant CCCs are said to havebeen issued is in many cases unclear and internally inconsistent. Given this, CHHsays it would be quite unsafe to strike out those claims now.[40] I note the comprehensive and very helpful written and oral submissions by allparties on these issues. I mean no disrespect to the quality of the submissions bysummarising them in the relatively brief manner set out about.Analysis – do the Building Act longstop provisions apply to contribution claims?[41] The longstop provision currently in force is s 393 of the 2004 Act, whichprovides as follows:393 Limitation defences(1) The Limitation Act 2010 applies to civil proceedings against anyperson if those proceedings arise from—(a) building work associated with the design, construction,alteration, demolition, or removal of any building; or(b) the performance of a function under this Act or a previousenactment relating to the construction, alteration, demolition,or removal of the building.(2) However, no relief may be granted in respect of civil proceedingsrelating to building work if those proceedings are brought against aperson after 10 years or more from the date of the act or omission onwhich the proceedings are based.(3) For the purposes of subsection (2), the date of the act or omission is,—(a) in the case of civil proceedings that are brought against aterritorial authority, a building consent authority, a regionalauthority, or the chief executive in relation to the issue of abuilding consent or a code compliance certificate under Part2 or a determination under Part 3, the date of issue of theconsent, certificate, or determination, as the case may be; and(b) in the case of civil proceedings that are brought against aperson in relation to the issue of an energy work certificate,the date of the issue of the certificate.[42] Its predecessor was s 91 of the 1991 Act, which was in similar but not the sameterms:91 Limitation defences(1) Except to the extent provided in subsection (2) of this section, theprovisions of the Limitation Act 1950 apply to civil proceedingsagainst any person where those proceedings arise from—(a) Any building work associated with the design, construction,alteration, demolition, or removal of any building; or(b) The exercise of any function under this Act or any previousenactment relating to the construction, alteration, demolition,or removal of that building.(2) Civil proceedings relating to any building work may not be broughtagainst any person 10 years or more after the date of the act oromission on which the proceedings are based.(3) For the purposes of subsection (2) of this section if—(a) Civil proceedings are brought against a territorial authority, abuilding certifier, or the Authority; and(b) The proceedings arise out of the issue of a building consent, abuilding certificate, a code compliance certificate, or anAuthority determination—the date of the act or omission is the date of issue of the consent orcertificate or determination.(4) For the purposes of subsection (2) of this section, if civil proceedingsare brought against the Authority and the proceedings arise out of theissue of an accreditation certificate, the date of the act or omission isthe date at which the accreditation certificate was relied on.(4A) For the purposes of subsection (2) of this section, if—(a) Civil proceedings are brought against any person; and(b) The proceedings arise out of the issue of an energy workcertificate,—the date of the act or omission is the date of the issue of the certificate.(5) Notwithstanding section 93(1)(a) of this Act, subsection (2) of thissection applies to any proceedings commenced after this Part of thisAct comes into operation, except proceedings commenced before the1st day of July 1993.[43] Both parties agree that nothing turns on the textual changes between the twoprovisions, both having the same substantive effect.[44] I first summarise CHH's proceedings against the Councils. That is relevant towhether those proceedings are "civil proceedings relating to building work" and thuswhether the longstop provisions apply to them.[45] The essence of CHH's defence in the Main Proceedings is that:(a) the relevant school buildings were:(i) not built in accordance with the Building Code, the BuildingCode requirements or the applicable Building Acts;(ii) not built in accordance with the relevant cladding systemspecifications;(iii) built with a range of construction defects (the "ConstructionDefects");(b) any water ingress or defects complained of in the Main Proceedingswere caused by:(i) failures by building work professionals;(ii) failures by territorial authorities in issuing building consents,carrying out inspections and/or issuing CCCs;(iii) failures by the plaintiffs in the Main Proceedings to maintain theschool buildings; and(c) any loss suffered by the Ministry was or will be suffered as a result ofthe Construction Defects, and not as a result of any defects in CHH'sShadowclad product.[46] On this basis, CHH's claims against the Councils centre on CHH's allegationthat each Council breached its duty of care to the Ministry when reviewing and issuingbuilding consents for the building works; carrying out inspections of the buildingworks; and issuing CCCs. CHH accordingly pleads that each Council:(a) issued building consents notwithstanding that the plans andspecifications did not comply with the Building Code then in force;(b) failed to identify the Construction Defects during the course of itsinspections; and(c) thus negligently issued the relevant CCCs.[47] Turning now to the longstop provisions themselves, the courts have consideredthe policy and legislative history to those provisions in a number of earlier decisions.In particular, Glazebrook J conducted a detailed review of the longstop's legislativehistory in Klinac v Lehmann.18 Her Honour noted the issues arising from thereasonable discoverability test to the commencement of the limitation period fornegligence, and that the Law Commission had recommended a longstop provision toprovide a balance between the interests of homeowners and those involved in theconstruction industry. In essence, the Law Commission saw a longstop provision asproviding finality and certainty to those in the construction industry.[48] The Law Commission's recommendations were subsequently reflected in thedraft Bill that became the 1991 Act, which included a longstop period of 15 years. InParliament's consideration of the draft Bill, the Hon John Carter, Chair of the InternalAffairs and Local Government Committee said the following:19the select committee introduced what it has called a 15-year long-stopprovision for building liability. In other words, no action can be taken after15 years against a builder, or a certifier, or anybody involved in theconstruction of a building. After 15 years the responsibility for theconstruction rests entirely with the building's owner.[49] By the time of the second reading of the Bill, the longstop period had beenreduced to 10 years, primarily as a result of insurance cover to those in the constructionindustry not being available for a 15-year period. In speaking to that version of the18 Klinac v Lehmann (2002) 4 NZ ConvC 193,547 (HC) at [13] to [26].19 (31 October 1991) 520 NZPD 5296.Bill, the then Minster of Internal Affairs, the Hon Graeme Lee, noted the Australianexperience was that 98 per cent of building faults become apparent within the first 10years of the life of building, such that the 10-year longstop period would still provideadequate protection for the public. In Klinac, Glazebrook J also noted that, while theprimary motivation for the longstop was to provide protection for local authorities,amendments in 1993 broadened the longstop's application to professionals andcontractors involved in the building design process.[50] In Gedye v South, the Court of Appeal endorsed Glazebrook J's summary ofthe longstop's legislative history.20 The Court recognised that finality was a primarymotivator behind the enactment of the longstop provisions, concluding that:21History shows that the impetus for a longstop provision in New Zealand wasthe problems engendered by a discoverability approach in the context ofnegligence claims pertaining to building work and building control. Equallyclearly, we think the purpose of s 91(2) was to restrict the litigation of faultybuilding claims to a maximum 10-year period.[51] As can be seen from the text of s 91 of the 1991 Act and s 393 of the 2004 Actset out above, for the 10-year longstop period to apply, the relevant civil proceedingsmust be "proceedings relating to building work". In the Strike Out Judgment, theSupreme Court concluded that the phrase "relating to building work" was a shorthandway of referring back to civil proceedings of the kind described in s 393(1).22 Andalthough the Supreme Court was concerned with s 393 of the 2004 Act, the same mustbe the case in respect of s 91 of the 1991 Act, and its reference to "civil proceedingsrelating to building work".23[52] Accordingly, if proceedings arise from any of those activities set out in s 91(1)of the 1991 Act or s 393(1) of the 2004 Act (or in shorthand, "relate to building work"),then the 10-year longstop provision will begin to run from the date of the "act oromission on which the proceedings are based". The Supreme Court also emphasisedin the Strike Out Judgment that the focus of the inquiry is on the nature of the20 Gedye v South [2010] NZCA 207, [2010] 3 NZLR 271.21 At [35].22 Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [94] and[129].23 Section 91(2). The words "relating to building work were added to s 91(2) by the 1993amendments to the 1991 Act.proceedings, rather than whether the defendant's act or omission was itself buildingwork.24[53] As CHH has emphasised, there are conflicting High Court decisions onwhether the longstop provisions apply to contribution claims.[54] In the first of the relevant High Court decisions, Cromwell Plumbing Drainage& Services Ltd v De Geest Brothers Construction Ltd, the plaintiffs, a Mr and MrsWard, sued De Geest for negligent construction of a house. In turn, De Geest claimedagainst Cromwell, the plumber, as a third party. The claim as between the Wards andCromwell was time-barred, given the longstop period applied. The issue before theCourt was whether De Geest's contribution claim against Cromwell was similarlytime-barred.[55] John Hansen J held that the longstop provision did not apply to De Geest'scontribution claim.25 In a passage at the heart of Mr Miles QC's submissions on thispoint for CHH, the Judge concluded that s 17 of the LRA and s 14 of the LimitationAct 1950 (which specified the limitation period for contribution claims) "provide aspecific and self-contained code laying down the timeframe for a claim forcontribution".26 His Honour went on to state that:27The effect of s 33 [of the Limitation Act] means that the Limitation Act doesnot apply to any action where a period of limitation would be prescribed byany other enactment. Section 91 of the Building Act relates to civilproceedings arising from any act or omission associated with the design,construction, alteration, demolition, or removal of any building. In thepresent case, the cause of action relied on by Geest Brothers againstCromwell Plumbing does not arise from the provisions of the BuildingAct. It arises from the specific statutory cause of action created by s 14 [sic].In my view, the time limitation in s 91(2) applies to actions where the causeof action is based on the matters set out in s 91(1)(a). It does not apply tocauses of action that are statutorily created by the provisions of s 14 ofthe Limitation Act.28[Emphasis added]24 Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [95] and[125].25 Cromwell Plumbing Drainage & Services Ltd v De Geest Brothers Construction Ltd (1995)9 PRNZ 218 (HC).26 At 221.27 At 221.28 It seems that John Hansen J's references in this passage (and elsewhere in his judgment) to thestatutory cause of action having been created by s 14 (of the Limitation Act) was in error, thecorrect reference being s 17 (of the LRA).[56] It is also clear from John Hansen J's judgment that he was concerned that ifs 393 applied to contribution claims, it "would effectively render s 17(c) meaninglessin all cases relating to buildings".29[57] There then followed a line of High Court decisions which disagreed withCromwell and concluded the longstop provisions do apply to contribution claims. Thefirst of these is Courtney J's judgment in Dustin v Weathertight Homes ResolutionServices.30 While Courtney J's conclusions in relation to the application of thelongstop provisions were obiter, her reasoning has been approved and adopted in anumber of subsequent cases.31[58] Courtney J's reasoning in Dustin can be summarised as follows:(a) She noted John Hansen J's concerns in respect of rendering s 17 of theLRA meaningless, and accepted that it may be that the effect of thelongstop is more noticeable in contribution claims, given there can bea delay between a plaintiff bringing a claim and the commencement ofa claim for contribution. However, Courtney J noted that the effect ofthe longstop period was to truncate the time period within which claimsrelating to building work can be brought, and that is not a valid reasonin and of itself for not applying the provision to claims for contribution.She respectfully considered that the Judge in Cromwell had overstatedthe position when concluding that applying the longstop to contributionclaims would render s 17 of the LRA "meaningless", particularly wherethe claim for contribution is brought as a third party claim in theplaintiff's main proceeding.(b) Courtney J also saw the rationale for the longstop period supporting itapplying to contribution claims. She noted that the policy behind thelongstop provision was to bring certainty and finality to the29 At 222.30 Dustin v Weathertight Homes Resolution Service HC Auckland CIV-2006-404-276, 25 May 2006.31 Carter Holt Harvey Ltd v Genesis Power Ltd (No 8) HC Auckland CIV-2001-404-1974, 29 August2008; Davidson v Banks HC Auckland CIV-2006-404-6150, 23 March 2009; Body Corporate169791 v Auckland City Council HC Auckland CIV-2004-404-5225, 17 August 2010; PerpetualTrust Ltd v Mainzeal Property and Construction Ltd [2012] NZHC 3404.construction industry, by preventing what might otherwise be validclaims being brought outside it. She also noted that it ensures fairness,given issues as to freshness of memories and availability of witnesses,as well as providing certainty to defendants, in relation to matters suchas retention of documents and liability insurance. Courtney J observedthat these issues are just as relevant in the context of a contributionclaim as in a primary claim.(c) Further, Courtney J considered the wording of the longstop provisionto be "as plainly worded as it is possible to be",32 and on this basis, didnot consider there was any need for the statute to go on and expresslyspecify that it applies to claims for contribution, as well as to claims byplaintiffs.(d) Finally, Courtney J considered that the Court in Cromwell had beenwrong to focus on the statutory nature of the cause of action under s 17of the LRA. Courtney J considered the wording of the longstopprovisions easily accommodate a claim for contribution based on theclaimant's own liability for building work.[59] In Carter Holt Harvey Ltd v Genesis Power Ltd, Randerson J agreed withCourtney J's conclusions and her analysis as summarised above.33 Randerson J didnot, however, examine the issue in any further detail, the key issue before the Court inthat case being whether "design work" also fell within the longstop provision's scope.[60] In Davidson v Banks, Associate Judge Faire (as he then was) consideredCromwell, Dustin and Carter Holt, and preferred Courtney J's reasoning in Dustin.3432 Referring to similar observations of the Court of Appeal in Johnson v Watson [2003] 1 NZLR 626(CA) at 629.33 Carter Holt Harvey Ltd v Genesis Power Ltd (No 8) HC Auckland CIV-2001-404-1974, 29 August2008.34 Davidson v Banks HC Auckland CIV-2006-404-6150, 23 March 2009.[61] Subsequently, in Body Corporate 169791, Lang J again considered thesedecisions and also adopted the Dustin approach.35 Lang J concluded that s 393 of the2004 Act imposes a separate limitation period in respect of all civil proceedingsrelating to building work and overrode the general limitation provisions contained inthe Limitation Act. In reaching this conclusion, Lang J said the following:[40] The principal concern that I have about the reasoning in Cromwell isthat it concentrates almost exclusively on the right of a defendant to seek acontribution from a concurrent tortfeasor, and the impact that application of s91(2) would have on that right. It does not place any weight at all upon theplain and unambiguous wording used in s 92(2).[41] I consider that Parliament has worded s 91(2) and s 393(2) carefully.In using the phrase "civil proceedings", it has endeavoured to capture everyform of civil proceeding regardless of its source or makeup. Similarly, in usingthe words "relating to building work" Parliament has attempted to captureevery civil proceeding that arises out of building work as that term is definedin s 2 of the Act. If Parliament had intended s 91(2) or s 393(2) to apply onlyto claims between a plaintiff and a defendant, it would have used wording thatwould have made that fact clear.[42] That conclusion is supported by powerful policy considerations. Theenactment of s 91(2) and s 393(2) signalled that Parliament intended that civilproceedings relating to building work were to be subject to a 10 year long stopperiod. That policy decision was taken in the interests of achieving a highergoal, and its implementation has necessarily been at the expense of someclaims that would otherwise have been valid. I see no justification fordistinguishing in this context between a primary claim by a plaintiff against adefendant and a claim for contribution by a defendant against a concurrenttortfeasor.[62] Finally, in Perpetual Trust, Andrews J conducted a detailed review of the casesand issues discussed above, and, adopting similar reasoning to Courtney and Lang JJ,also concluded the longstop provision applies to contribution claims.36 Andrews Jexamined the legislative history of the longstop provision in some detail, observingthat:[45] It is clear from the speech just cited that Parliament's intention wasthat the ten-year longstop would apply to all claims against people in theconstruction industry. No distinction was made as to who was to make suchclaims, or in which form; that is, whether it was claims by owners againstbuilding professionals, or cross-claims as between building professionals.The intention was that building professionals should be able to obtaininsurance cover, and such cover is required in respect of cross-claims between35 Body Corporate 169791 v Auckland City Council HC Auckland CIV-2004-404-5225, 17 August2010.36 Perpetual Trust Ltd v Mainzeal Property and Construction Ltd [2012] NZHC 3404.professionals as much as it is for claims by owners against buildingprofessionals.[63] Having carefully considered the above decisions and the reasoning containedin them, I respectfully agree with the approach adopted in the Dustin line of cases. Ican add little to the reasoning set out in those cases, and in particular, that of Courtney,Lang and Andrews JJ, which I gratefully adopt.[64] In my view, to exclude contribution claims which clearly relate to buildingwork would be contrary to the plain wording of the longstop provisions in both the1991 and 2004 Acts, as well as the clear Parliamentary intent which lies behind thoseprovisions. As Andrews J noted in Perpetual Trust, there is no suggestion in thelegislative history that cross-claims as between building professionals and/orterritorial authorities, or third party contribution proceedings, were to be excludedfrom the finality and certainty which was sought through the longstop provision. Hadsuch an important and broad exclusion been intended from the otherwise plain wordsused, one might have expected Parliament to have said so expressly.[65] I respectfully agree with Lang J's observations as to the reasoning in Cromwell,in that it unnecessarily focuses on the legal basis or cause of action giving rise to thedefendant's obligation to the claimant in the contribution proceedings, rather than onthe matters to which those proceedings relate. I therefore also respectfully agree withAndrews J's reasoning in rejecting the submission made in Perpetual Trust that as acontribution claim is a statutory cause of action between two defendants (or onedefendant and a third party) independent of the main claim by the plaintiff, it is nottherefore a "proceedings relating to building work". I also consider it would betechnical and artificial to approach a proceeding which clearly relates to building workas not being such a proceeding simply because it is brought by way of a claim forcontribution. I do not consider Parliament intended the finality and certainty intendedby the longstop provision to depend on the arbitrariness of whether a party is sueddirectly by the plaintiff or by a defendant by way of a contribution claim, when thenature of the claim against that party is the same in both cases.[66] I also consider the approach adopted in the Dustin line of cases to be consistentwith the Court of Appeal's judgment in Gedye v South.37 In that case, the Gedyes hadcommissioned building work for which a building consent was required on aresidential property they owned. That work had been carried out in 1997. In 2003,the Gedyes sold the property and the sale and purchase agreement contained awarranty that any works undertaken on the property which required a building consenthad been performed in full compliance with the Building Act 1991. In 2008, thepurchasers of the property sued the Gedyes for breach of the contractual warranty. TheGedyes applied for summary judgment against the purchaser, on the basis that theclaim was time-barred by s 91(2) of the 1991 Act.[67] The Court of Appeal agreed with the Gedyes' submission that the proceedingarose from building work associated with the "design, construction, alteration,demolition, or removal of any building" for the purposes of s 91(1) of the 1991 Act.The proceedings were therefore civil proceedings "relating to building work" for thepurposes of s 91(2). On that basis, the longstop provision did apply. However, giventhe "act or omission on which the claim was based" for the purposes of s 91(2) wasthe act of warranting the previous building work was compliant (i.e. rather than thecarrying out of the building work itself), time began to run from the date of that act,namely from entry into the sale and purchase agreement. As a result, the longstopprovision began to run at the same point in time as the general limitation period.38[68] In Gedye v South, the legal basis to the claim, or the cause of action, was breachof contract. In terms of the reasoning in Cromwell as set out at [55] above, the longstopprovision would not have applied, as that cause of action did not arise from thosematters set out in s 91(1)(a) of the 1991 Act. Rather the proceeding arose from theentry into a contract containing a warranty as to earlier building work. Contrary to thereasoning in Cromwell, however, and as noted, the Court of Appeal had no difficultyin finding the proceedings nevertheless related to building work. The Supreme Courtin Carter Holt Harvey Ltd v Minster of Education also observed there was "no doubt"37 Gedye v South [2010] NZCA 207, [2010] 3 NZLR 271.38 At [43].in both Gedye v South and Klinac (which was also a contractual claim for breach ofwarranty regarding building work) that the proceedings related to building work.39[69] I accept the above cases did not concern contribution claims. However, it isdifficult to see why contractual claims for breach of warranties concerning earlierbuilding work are "proceedings relating to building work", but a claim for contributionbased entirely on a party's alleged failure to prevent defective building work is not.[70] In addition, in the Strike Out Judgment, the Supreme Court stated:40[W]here a regulator is sued in relation to defects in building work that it isalleged that they should have prevented, the claim relates to building workand the longstop therefore applies.[71] The fact a regulator is sued by a defendant by way of contribution rather thandirectly by the plaintiff ought not, in my view, to lead to a different result. In bothproceedings, the claim against the regulator, namely its duty, acts and/or omissionssaid to have caused the plaintiff's loss, is the same, despite s 17 of the LRA giving thedefendant the legal right to sue the regulator in relation to those matters.[72] It follows that I do not accept CHH's reliance on various UK and Australiancases in support of the proposition that the longstop provisions do not apply tocontribution claims. In this context, CHH relies primarily on the English Court ofAppeal's decision in Tuckwood.41 Given this decision (and those which follow it) werenot considered by the Court in any of the earlier New Zealand decisions in which ithas been held the longstop provisions apply to contribution claims, it is necessary toexamine them in some detail.[73] In Tuckwood, the plaintiff sought an indemnity from the City of Rotherham inrespect of compensation paid to one of the plaintiff's employees (under to theWorkmen's Compensation Act (UK)) for injuries sustained in a collision with a citytramcar. Under the Workmen's Compensation Act, an employee could choose to sueeither the employer or the city direct. The accident took place on 4 April 1919. The39 Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [114].40 At [122].41 Tuckwood v Rotherham Corporation [1921] KB 526 (CA).workman sought compensation from the plaintiff/employer on 16 August 1919, andon 16 September 1919, the plaintiff filed its answer, as well as a third party noticeagainst the city. The city took no steps in that proceeding, such that under theWorkmen's Compensation Rules, the city was deemed to accept the ruling in theemployee's compensation claim. The judge in the compensation claim found for theemployee. The plaintiff/employer subsequently sued the city on 10 December 1919,seeking an indemnity pursuant to s 6 of the Workmen's Compensation Act.[74] The city responded by submitting the claim for indemnity was time-barred bys 1 of the Public Authorities Protection Act 1893 (UK). Under that section, any claimagainst the city "in respect of any alleged neglect or default in the execution of anysuch Act [of Parliament], duty, or authority" was time-barred unless commencedwithin six months of the act, neglect or default complained of. If that provisionapplied, the plaintiff's claim was time-barred as of 4 October 1919.[75] The Court of Appeal rejected the city's argument on the basis that the statutoryclaim for indemnity did not fall within the scope of the Public Authorities ProtectionAct. It is helpful to set out the key reasoning of each member of the Court.[76] In his judgment, Bankes LJ stated the following:42The question thus is, is this action claiming the right to the statutory indemnityan action in respect of any alleged neglect in the execution of any such duty?In my opinion it is not. It is true that in order to succeed in the action theplaintiff must establish that the workman would have been entitled to recoverdamages against the corporation for the negligence of their servant driving thetramcar. That no doubt is an essential part of his cause of action; but I do notthink that it is true to say that the right to the statutory indemnity is anaction in respect of any alleged neglect in the execution of a duty withinthe language used in the section. To accept any other interpretation of thestatute would lead to this result, that in a very large number of cases, ifnot the great majority of cases, a person who sought to take advantage ofthe indemnity clause would find that he would be out of time, becausethe proceeding instituted by the workman might very probably not beconcluded by the establishment of the workman's right to recovercompensation within six months of the date of the accident.In my judgment the Public Authorities Protection Act does not apply to thisparticular and very special kind of action[Emphasis added]42 At 533.[77] Scrutton LJ reached the same conclusion. He described the question as "oneof considerable difficulty", arising from the fact that the Public Authorities ProtectionAct was framed in general terms and "has to be applied to a large number of cases,which were not obviously present to the mind of the Legislature". Scrutton LJ gavethree reasons, in conjunction with the policy of the legislation, for finding theemployer's claim not time-barred. His second reason was that:43the claim against the corporation is not in respect of a neglect in theexecution of any such Act, duty or authority. It is true that negligence is oneof the ingredients of the liability to indemnity, but there are several otheringredients of liability – namely, that the person asking for indemnity has,under the Workmen's Compensation Act, either paid or been compelled by anorder to pay the compensation provided by the Act, which may be somethingquite different from the damages which would follow at common law for anact of negligence.[78] Scrutton LJ went on to say the following:44Those are the three reasons which lead me to think the appeal on this pointshould be dismissed. I should like to say that the reason why I think, on thecombined effect of those three grounds, that I am right, although I am not sureon which of them, is the position which would arise in the event of thedefendants' contention being rightOne knows that the question of liabilityof an employer to pay compensation to an injured workman is often taken tothe House of Lords The proceedings might easily take more than sixmonths, and if the defendants' contention were right, the person whose servantwas negligent would escape, because the sub-contractor would not be able toclaim an indemnity until the decision of the House of Lords was given.[79] The third member of the Court, Atkin LJ, expressed similar reasoning fordismissing the city's argument:45But the words "in respect of" are very general words which must havesome limitation. In the case referred to [i.e. where the workman sued the citydirectly] the cause of action arose directly out of and in consequence of theneglect or default complained of. That is not the position here, because in thiscase the alleged neglect or default in not driving the tramcar with proper skillgave no cause of action to the plaintiff. He derives his right to make a claimagainst the defendants, not because of their act or default, but because theAct of 1906 has imposed a liability on them to indemnify him if he hashad to pay compensation to his injured workman by reason of that neglector default. So that is doubly removed, if I may say so, from the act ordefault. First, the plaintiff has to rely on the statutory right of indemnity, and,secondly, he does not acquire that statutory right to indemnity unless the43 At 536.44 At 537.45 At 538-539.workman has recovered compensation from him. In view of thoseconsiderations and in view of the consequences which would follow fromany other construction of the Act, it appears to me that it would be wrong tohold that the Public Authorities Protection Act applied to a case of this kind.I find it difficult to believe that the Legislature can have imposed a limit of sixmonths unless upon the supposition that a cause of action, which is prohibitedif it is not brought within six months, came into existence at the beginning ofthe six monthsIf that is the true view, one can understand the Act applying,because, because then there is a period of six months during whichproceedings might be taken against the public authority but when an action isbrought in respect of, in one sense, a neglect or default under circumstanceswhere no cause of action has arisen during the six months, and which, if thedefendants' were correct, would be barred after the expiration of the sixmonths, it appears to me impossible to suppose that that Act, passed forthe protection of the public authority, should be so applied as to defeatany cause of action against the public authority at all.[Emphasis added][80] I accept the decision in Tuckwood supports CHH's argument that a contributionclaim does not arise from or relate to building work, but rather is something new andseparate to the primary claim, and arises from the claimant's statutory right to seekcontribution from the relevant third party. However, a careful reading of the judgmentsin Tuckwood highlights that each member of the Court was very alive to the fact thata contrary interpretation of the statutory provision in issue would have meant that inmost, if not all, cases, claims for indemnity against the public authority would be time-barred. This stemmed from the very short limitation period in that case, and that it didnot appear to be the case that the employer's claim for indemnity by way of separateproceedings could be commenced (i.e. rather than determined) until after theemployee's claim against the employer had been determined. It was against thosepractical consequences that the specific statutory words were interpreted.[81] Further, it was relevant to the reasoning in Tuckwood that the limitation periodin question was of general application, and the Court did not consider Parliament hadintended it to apply to the particular indemnity claim before it. In this case, theBuilding Act longstop provisions are not of general application, and Parliament clearlygave considerable thought to the somewhat arbitrary nature of a longstop provisionbeing adopted, but considered a clear and definite cut-off for claims in relation todefective buildings to be in the broader interests of justice. Moreover, a claim forcontribution will often be brought within the plaintiff's main proceeding,46 meaningthe quite stark practical consequences which loomed large in Tuckwood do not arise.[82] I accordingly do not read Tuckwood as supporting the conclusion that, despitethe plain wording of the Building Act longstop provisions and the clear legislativeintent behind them, all claims for contribution under s 17 of the LRA were intended tobe excluded from their reach.[83] Similar observations apply to subsequent cases which have considered and/orapplied Tuckwood (also involving limitation provisions in relation to claims againstpublic authorities). In Littlewood v George Wimpey & Co Ltd, the statutory provisionproviding for contribution was framed in similar terms to s 17 of the LRA.47 At issuewas whether s 21 of the Limitation Act (UK) applied to contribution claims. Section21 of the Limitation Act (UK) was in the same terms as the limitation provisionconsidered in Tuckwood, though the limitation period was one year rather than sixmonths.[84] The focus of the Court's decision in Littlewood was on other aspects of thestatutory provisions which are not relevant for present purposes. However, in relationto the limitation argument, Singleton LJ did not in fact consider Tuckwood helpful andwould have held s 21 of the Limitation Act applied in that case. Denning LJconsidered what limitation period applied, and noted that "at first sight", it was the 12-month period set out in s 21 of the Limitation Act, because the action was brought "inrespect of" neglect in the public authority's public duty. He went on to observe,however, without further analysis, that:48the decision of this court in Tuckwood v Rotherham Corporation in myview, binds us to hold that the words "in respect of" do not cover an action forindemnity where, beside the neglect, there are other ingredients necessary togive rise to the cause of action.46 See Law Commission Liability of Multiple Defendants (NZLC R132, 2014) at [2.8].47 Littlewood v George Wimpey & Co Ltd [1953] 2 QB 501 (CA).48 At 520.[85] Morris LJ also decided the case on grounds other than limitation, thoughexpressed the (somewhat tentative) view that the reasoning in Tuckwood "wouldsuggest that the 12 months' period of limitation was not applicable."49[86] Tuckwood was cited with approval by the High Court of Australia in Unsworthv Commissioner for Railways.50 The statutory provision in issue in that case was onewhich limited the quantum of damages in "any action brought against theCommissioner to recover damages or compensation in respect of personal injury".Fullager J referred to Tuckwood, noting that he preferred Aitken LJ's reasoning to thatof Bankes LJ. He concluded that the statutory language in issue in Unsworthcontemplated proceedings taken to enforce liability for acts or omissions which arewrongful as against the person taking the proceedings, which therefore did not extendto contribution proceedings. Taylor J expressed a similar view, also with reference toTuckwood, holding that a contribution claim "is in no sense an action to recoverdamages in respect of personal injury". The third member of the Court, McTiernanACJ, did not address this particular issue. However, the decision again turned on theproper interpretation of the statutory wording in issue.[87] CHH also referred me to a decision of the New South Wales Court of Appealin Nickels v Parks.51 That case also concerned the limitation period applicable tocontribution claims against statutory authorities. In that case, and again with referenceto Tuckwood, Jordan CJ held that, while in a contribution claim, negligence on the partof the statutory authority is an essential part of the claimant's cause of action, it wasonly one ingredient and was accordingly not an action against the statutory authority"for neglect or default" in the performance of their statutory duties. Again, I read thatdecision as turning on the proper interpretation of the statutory wording in question.[88] I also reject CHH's submission that if Parliament had intended to "override"the limitation period in respect of contribution claims, it would have needed to do soin very clear terms, when it has not done so. As noted in earlier cases, including bythe Court of Appeal in Johnson v Watson, the longstop provisions are in very clear49 At 525.50 Unsworth v Commissioner for Railways (1958) 101 CLR 73.51 Nickels v Parks (1948) 49 SR (NSW) 124 (CA).terms.52 For example, it is clear from the combination of the introductory words ofs 91(1) of the 1991 Act and the s 91(2) longstop provision itself that none of theprovisions of the Limitation Act 1950 (including s 14 concerning contribution claims)will apply to the extent s 91(2) applies to the relevant civil proceeding. The sameconclusion is reached from the combination of the opening words to s 393(1) of the2004 Act and the word "however" at the beginning of s 393(2). Clear and expresswords have been used.[89] CHH also submits a different approach to that taken in the Dustin line of casesis now warranted given the "narrow approach" taken by the Supreme Court to thephrase "civil proceedings relating to building works" in the Strike Out Judgment. Idisagree that the Court adopted a "narrow approach". In that case, there was no disputethat the Shadowclad product was not itself "building work". Ultimately, the Courtsimply concluded that the concept of "civil proceedings relating to building work" didnot extent to proceedings relating to a defective product, even if that product happenedto have been incorporated in a building. That was not a "narrow" approach, but ratherthe application of the plain words of s 393(2) of the 2004 Act to the true nature of theMain Proceedings.[90] I also do not accept CHH's submission that any "unfairness" in applying thelongstop to contribution claims mandates a contrary conclusion. Any limitation periodis in a sense arbitrary and unfair, given it precludes the bringing of what mightotherwise be a meritorious claim. Further, to the extent CHH is found liable in respectof its alleged defective Shadowclad product, it will obviously be liable only fordamage caused by its defective product, albeit where there might have been otherparties who also caused that damage. While it may be unfortunate for CHH not to beable to spread its own liability across other concurrent tortfeasors, as the SupremeCourt observed in the Strike Out Judgment, that is the consequence of the legislaturedetermining that the longstop applies to some but not all claims relating to buildings.53[91] Finally, I accept CHH's submission that prior concerns as to "open endedlitigation" are now lessened, given the Limitation Act 2010 has shortened the52 Johnson v Watson [2003] 1 NZLR 626 (CA).53 Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [128].limitation period for contribution claims from six to two years and introduced a general15-year longstop provision. Nevertheless, that was not the position when the BuildingAct longstop provisions were enacted, and they must be construed in accordance withtheir plain wording and what, if anything, can be gleaned in respect of the Legislature'sintent in enacting them. The proper statutory meaning cannot change over time as aresult of later legislative or other broader events. While subsequent developments maygive rise to a question mark over whether the specific Building Act longstop provisionsare still required,54 that is a matter for Parliament and not the courts.[92] I accordingly conclude that the Building Act longstop provisions apply tocontribution claims, to the extent the claim relates to building work. There was nosuggestion that, other than because they are contribution claims, CHH's claims againstthe Councils do not relate to building work.[93] That is not, however, the end of the matter. Two subsidiary issues arise out ofthe first and fifth grounds of the Councils' application; first, are the Councilsprejudiced by the delay in serving the Third Party Notices in the sense required to setthose notices aside? And second, are aspects of CHH's claims so clearly untenable thatthey should be struck out?Analysis – should the Third Party Notices be set aside or struck out for prejudice/abuseof process?[94] Mr Weston QC for the Councils acknowledges that if the Councils cannotdemonstrate prejudice, CHH's application for an extension of time to serve the ThirdParty Notices will inevitably be granted.[95] The prejudice said to arise from the delay in serving the Third Party Notices isset out at [32] above.54 A point noted by the Supreme Court in Carter Holt Harvey v Minister of Education [2016] NZSC95, [2017] 1 NZLR 78 at [131].[96] As CHH notes, the threshold for setting aside or striking out proceedings fordelay is high. Delay in and of itself will not be sufficient.55 In general, an actionshould only be dismissed on the ground of delay where:56(a) The plaintiff's default has been intentional and contumelious;57 or(b) Where there has been inordinate and inexcusable delay giving rise to asubstantial risk that a fair trial would not be possible or to seriousprejudice to the defendant.[97] The overriding consideration is whether justice can be done despite the delay.58[98] In Lovie, Eichelbaum CJ observed that the plaintiff had "frankly explained thereason" for the 13-month delay in that case, and did not seek to excuse the delay. HisHonour declined to label the conduct as "contumelious".59 I consider the same toapply here. CHH has explained the delay in service of the Third Party Notices, namelypending the final outcome of its strike out application in the Main Proceedings.Rightly or wrongly, it considered it preferable to keep the Councils out of the MainProceedings pending final resolution of the application – which if determined inCHH's favour would likely have brought the entire proceedings to an end. It held andholds the view that the Ministry's claims are invalid. Accordingly, the lengthy delay,whilst inordinate and probably after at least the Court of Appeal's decision on its strikeout application, inexcusable, was more an honest mistake of judgment, rather than anintentional and contumelious course of conduct.[99] The Councils' primary position is that the delay was inordinate andinexcusable, and they have been seriously prejudiced by that delay, being time-barredfrom joining further parties to claims in respect of approximately 49 school buildings.55 Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 (CA) at 1432; Lovie vMedical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC) at 253.56 Birkett v James [1977] 2 All ER 801; [1978] AC 297; Bank of New Zealand v Savril ContractorsLtd [2005] 2 NZLR 475 (CA) at [99].57 The latter generally defined as being scornful, insulting and/or insolent.58 Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC) at 253; CommerceCommission v Giltrap City Ltd (1998) 11 PRNZ 573 at 579; Bank of New Zealand v SavrilContractors Ltd [2005] 2 NZLR 475 (CA) at [99].59 Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC).[100] Prejudice arising from the inability to join further parties to the proceedingshas been considered in other High Court decisions concerning leaky buildings. I wasnot referred to any appellate authority on this particular issue.[101] In Carter Holt Harvey Ltd v Genesis Power Ltd, Randerson J considered theplaintiff's application for leave to amend the statement of claim to include claims inrelation to seismic issues. As noted earlier, in his judgment in that case, Randerson Jheld that s 91 of the 1991 Act did apply to contribution claims. That issue had arisenbecause Rolls-Royce, one of the defendants, proposed to seek contribution from twonamed third parties if the seismic issues were permitted to be added to CHH's claim.Having found that Rolls-Royce would have been out of time to seek such contribution,Randerson J concluded it would not be just to grant leave to amend the claim, given:60Rolls-Royce would face the possibility of being found liable for substantialdamages in relation to the seismic issue but would not have the opportunity toseek contribution or indemnity from the proposed third parties (or at least theJones Gray Partnership who I assume would be the principal target since theycarried out the relevant calculations).[102] In Snelling v Christchurch City Council, French J held that the right to seekcontribution from a co-defendant is a matter capable of amounting to undue or seriousprejudice for the purposes of the strike out rule.61 However, as Ellis J noted inAuckland Council v Weathertight Homes Tribunal (see below), by the time of thehearing before French J, the Council no longer relied on the potential inability to joinother parties as a ground of prejudice, such that French J's comments were obiter only.[103] In Auckland Council v Weathertight Homes Tribunal, Ellis J determined anapplication for judicial review arising from a decision of the Tribunal not to removethe Council as a party to leaky building proceedings.62 Part of the Council's case forremoval was prejudice arising from the delay in the proceedings, and in particular, theCouncil's inability to seek contribution from at least two potential joint tortfeasors.60 At [61].61 Snelling v Christchurch City Council HC Christchurch, CIV-2010-4309-2344, 9 August 2011 at[71], citing Stewart v Grey River Gold Mining Ltd HC Christchurch A517/78, 19 December 1991.62 Auckland Council v Weathertight Homes Tribunal [2013] NZHC 3274.[104] A key reason for Ellis J declining the Council's application was the in solidumprinciple of liability, and the consequently "legal reality" that the Council's ownliability to the plaintiff was unaffected by the presence or absence of othertortfeasors.63 In this context, Ellis J referred to extracts of the Law Commission'sreport considering whether to move from in solidum to proportionate liability, and therationale for maintaining in solidum liability.64 She also noted that a corollary of theCouncil's stance was that, notwithstanding the Council's negligence might have beenan operative cause of all of the plaintiff's losses, it should escape liability altogether,based on the inability to share its own liability with others.65[105] Ellis J also noted the inability to seek contribution was a "contingent" prejudiceonly, being the loss of a chance only of sharing responsibility. She noted there was nosuggestion the Council could not defend the proceedings against it, such that no "fairtrial" issues arose. Ultimately, Ellis J concluded:66It would in my view be wrong in principle for the Council to escape its liabilityentirely simply because the others who are also potentially liable for the sameloss cannot now be held to account.[106] Mr Miles also referred to Associate Judge Bell's decision in Minister ofEducation v Warren and Mahoney Architects Ltd.67 In that case, the Minister suedWarren and Mahoney for alleged defective design, as well as negligent inspection,observation and supervision of the relevant building works. Warren and Mahoney inturn sought contribution from the Council (and others) and issued separatecontribution proceedings to that effect. However, it delayed for five months in servingthe proceedings – largely on the basis that discussions were ongoing with the Ministryin the main proceeding. Once they had been served, the Council applied to set asideor strike out the contribution proceedings, on the basis the delay in service had causedprejudice to it. One of the grounds of prejudice advanced was that it had lost theopportunity to join parties from whom it also wished to claim relief. I interpolate tonote that it appears to have been accepted that the 10-year longstop applied to Warren63 At [27].64 At [28].65 At [29].66 At [30].67 Minister of Education v Warren and Mahoney Architects Ltd [2015] NZHC 2724.and Mahoney's claim for contribution from the Council, and to the Council's ownclaims against others involved in the construction works.68[107] Associate Judge Bell referred to French J's judgment in Snelling and Ellis J'sjudgment in Auckland Council v Weathertight Homes Tribunal. He proceeded on theassumption that the loss of an ability to join other parties is an available head ofprejudice. However, Associate Judge Bell decided the Council's application on adifferent ground, namely that as the claim against the Council was for contributionpursuant to s 17 of the LRA (i.e. it was not exposed to solidary liability), it could notmake contribution claims against other tortfeasors requiring them to share in its ownparticular liability.69[108] Associate Judge Bell did hold, however, that the Council could, in theory, haveother, direct claims against certain third parties, for example claims in negligentmisstatement in relation to producer statements on which the Council relied whencarrying out its functions. Only three remaining parties not already joined or insolventwere identified and Associate Judge Bell concluded that the potential inability to suethose parties in respect of obligations owed by them directly to the Council did notamount to serious prejudice.[109] Associate Judge Bell did not refer to any authorities for the proposition that, asthe claim against the Council was itself a contribution claim, it was not possible forthe Council to join further parties by way of contribution. Mr Weston submits thisaspect of Minister of Education v Warren and Mahoney Architects Ltd is wronglydecided, though he could not point to any particular authorities directly on point.However, he submits Associate Judge Bell's approach is overly mechanistic and isthus inconsistent with a number of other decisions in which a broad approach has beentaken to determining multiple defendants' shares of the plaintiff's overall loss. Inparticular, Mr Weston refers to Body Corporate 326421 v Auckland Council (theNautilus); Fisher v CHT Ltd; Dubai Aluminium Co Ltd v Salaam; and Wilkinson68 At [10], [13], [51].69 At [59].Building and Construction Ltd v Auckland Council.70 Mr Weston also refers to theSupreme Court's observations in Hotchin v New Zealand Guardian Trust CompanyLtd to the effect that s 17 of the LRA is remedial and thus ought not to be interpretednarrowly.71[110] I do not consider the position is as black and white as suggested in Minister ofEducation v Warren and Mahoney Architects Ltd. Nor does CHH go so far as tosuggest there is no prejudice to the Councils as they cannot, being defendants tocontribution claims, issue further claims for contribution from other potentialtortfeasors. Nor is there anything in the words of s 17 of the LRA which would restrictthe Councils from doing so. Rather, I accept the Councils' submission that the policyof s 17 of the LRA is to arrive at a broad assessment of a just and equitable sharing ofliability between all tortfeasors.72 While the Councils cannot pass off their owndetermined/particular liability through a contribution claim,73 the Court's overallassessment of the respective responsibility of various parties for the same damage maywell be influenced by the particular parties to that exercise. Nevertheless, I agree withCHH that any prejudice stemming from the inability to join further potentialtortfeasors is lessened when the party claiming such prejudice is not itself exposed tosolidary liability.[111] But even putting that point aside, I am not satisfied the Councils have sufferedserious prejudice through the delay in service of the Third Party Notices, at least to theextent requiring those notices to be set aside. I accept the inability to join furtherparties by way of contribution claims is an available head of prejudice. The clearer itis who would have been sued, on what basis, and the stronger the obvious merit of any70 Body Corporate 326421 v Auckland Council [2013] NZHC 753; Fisher v CHT Ltd (No 2) [1966]2 QB 475 (CA); Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366; WilkinsonBuilding and Construction Ltd v Auckland Council [2014] NZHC 1728.71 Hotchin v New Zealand Guardian Trust Company Ltd [2016] NZSC 24, [2016] 1 NZLR at [94],[140] and [232].72 See the observations of Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48,[2003] 2 AC 366 at [52] as to the object of contribution proceedings being to ensure that "eachparty responsible for the damage makes an appropriate contribution".73 See for example, the position of the Council in Wilkinson Building and Construction Ltdv Auckland Council [2014] NZHC 1728, where the Council, having paid the primary plaintiff'sdamage in full, was able to seek contribution from other tortfeasors for the amount it paid overand above its own 10 per cent share of the total damage. See also Law Commission Liability ofMultiple Defendants (NZLC R132, 2014) at [2.5], which also reflects a party not being able topass off its own determined share of the total damage to other tortfeasors.potential claim, the greater the prejudice will be. These are all factors to be taken intoaccount by the Court when considering whether, as an overarching consideration,justice can still be done despite the delay.[112] In this case, the Councils say they have lost the opportunity to make claims forcontribution from design and construction parties for at least 49 buildings. That is outof some 800 plus buildings in issue, so a reasonably small proportion only (a littleunder six per cent). On that basis, contribution claims remain available in relation tojust over 94 per cent of the buildings in issue. Further and importantly, the evidencein relation to this head of prejudice is couched in general and high level terms only.In other words, and unlike in cases such as Carter Holt v Genesis Energy (wherespecific and named third parties were identified), no specifics are given by theCouncils as to what third parties might have been joined in respect of these 49buildings. The exception to this is three examples, where the Councils say they couldhave pursued particular parties for contribution had CHH's Third Party Notices beenserved promptly. The affidavit evidence explains that in the time since service of theThird Party Notices, and given the lack of particulars in CHH's claims, the Councilshave not been able to conduct detailed investigations of potential parties to be joinedto the proceedings. There is no doubt, and CHH accepts, that its present pleadings aredefective in terms of the particulars required. However, despite this, the Councils havestill brought some 47 contribution claims against other parties (as limitation periodsapproach).74[113] Further, the evidence in relation to the three examples given does not go so faras to say that the third parties identified would have been joined, but simply that,subject to investigations, they "may" have been a "likely target" for joinder. There isalso no suggestion in the affidavit evidence filed on behalf of the Councils that thedelay has caused prejudice in relation to the availability of documentary records orcouncil witnesses.74 In submissions, the Councils note that those claims have in turn been met with complaints inrelation to the lack of particulars, but there is no evidence that any have been or are subject tostrike out applications as a result.[114] Accordingly, while I accept the Councils have suffered some prejudice as aresult of the delay, by losing the potential to issue contribution claims in a smallnumber of the buildings in issue, I consider that prejudice to be well below thethreshold required to strike out or set aside the Third Party Notices.[115] The second ground for prejudice relied on is only relevant if the Building Actlongstop provisions do not apply to contribution claims. As I have held that thelongstop provisions do apply to such claims, it is not necessary for me to consider thisground further.[116] The final ground for prejudice relied on by the Councils is the inability toinspect buildings which were scheduled to be substantially remediated or demolishedin the three years between December 2013 and December 2016.75 The Councils say43 school buildings fall into this category.[117] However, as CHH submits, and the Councils accept, the vast majority of thosebuildings have been inspected by Ministry and CHH experts. As such, it is not thecase that there is no expert record in relation to those buildings. CHH submits thoseexperts are under a duty to provide impartial evidence to the Court and not beadvocates for the parties. While that may be so if those particular experts giveevidence in these proceedings (and are thus subject to the expert witness code ofconduct), that is not necessarily the case where an expert is simply retained by oneparty. That said, I proceed on the basis that the experts have carried out their inspectionwork in a professional and proper manner. There is nothing to suggest otherwise.[118] Accordingly, and again while I accept there is likely to be some prejudice tothe Councils in not being able to carry out its own inspections on the 43 buildingsconcerned, that is not prejudice which warrants the Third Party Notices being set asideor struck out. Like the inability to issue contribution claims, this head of prejudiceapplies to a very small proportion only of the total buildings in issue, approximatelyfive per cent. And in respect of that five per cent, expert reports are available for thevast majority of the buildings. And for any buildings in respect of which there are no75 There is no evidence that all of those works were actually carried out as planned, though forpresent purposes, I proceed on the assumption (in favour of the Councils) that they did.expert reports, that is likely to be more an issue for CHH than the Councils, given inits claims against the Councils, CHH will bear the burden of proof.[119] I therefore conclude that the grounds for prejudice advanced by the Councils,individually and collectively, do not give rise to substantial prejudice warranting theThird Party Notices being set aside or struck out. Overall, justice can still be done,despite the significant delay in the notices being served. In particular, there is noreason why the Councils will not be able to defend the proceedings against it.[120] Given this, and as noted, Mr Weston acknowledges that CHH's application foran extension of time (being the "flip side" to the Councils' application) would begranted.76 I agree. I should emphasise that this in no way sanctions or excuses whatis on any view a significant delay in service. It simply reflects the particular nature ofthese proceedings, their already drawn out nature as multiple appeals are pursued anddetermined, and ultimately the lack of serious prejudice to the Councils from the delayin serving the Third Party Notices.[121] I accordingly grant CHHs application for an extension of time for service ofthe Third Party Notices and CHH's statement of claim against the third parties.Analysis – are aspects of CHH's claims so clearly statute-barred that they ought to bestruck out?[122] In a typical leaky building case, identifying the date upon which the particularcouncil issued a CCC in relation to the building in issue is straightforward and not indispute. As a consequence, it is usually straightforward for the Court to determine thatthe last relevant act or omission (i.e. the issue of the CCC) occurred more than 10years prior to the proceedings being commenced, such that the plaintiff's claim is soclearly time-barred that it ought to be struck out.77[123] This case is somewhat different. The proceedings are extremely large andcomplex, covering in excess of 800 individual school buildings. Further, given thenature of the buildings in issue, there are often more than one building at a particular76 Indeed at the hearing, Mr Weston stated it would be "very odd" if that weren't the case.77 Murry v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33].site, with multiple instances of work carried out on the various buildings at the schoolover the years, and thus multiple building consents and CCC relating to that particularschool.78 Further and unsurprisingly, individual schools and the Ministry will retainrecords and refer to particular school buildings in a way that can be quite different tohow the same building is referred to and recorded in council files. As discussed furtherbelow, this gives rise to some difficulties in identifying the particular building in issueand the correct CCC in relation to it. This is compounded by the fact that neither thebuilding consent number nor the relevant CCC in relation to each building is pleadedby either the Ministry in the Main Proceedings or by CHH in its contribution claimsagainst the Councils.79[124] Given these matters, CHH says that even if the 10-year longstop provisionsapply to contribution claims, I cannot be certain that the particular CCCs produced bythe Councils and said to have been issued before December 2003 (in relation to theThird Party Notices) or December 2006 (in relation to the Contribution Proceedings)are indeed the correct CCCs.[125] In light of this factual dispute, it is necessary to briefly summarise the evidenceon this topic.[126] Ms Hann, a senior solicitor in the Civil Litigation Legal Services Team atAuckland Council, swore the primary affidavit in support of the Councils' application.She explains the steps Auckland Council normally takes upon receipt of a leakybuilding claim, in terms of assessing the Council's involvement in the building workcomplained of; the merits of the claim; limitation issues; other parties which couldpotentially be joined and so on. Ms Hann deposes that in order to complete this work,she needs to be able to clearly identify the building work and the alleged Council actsor omissions to which the claim relates. She goes on to state that a clear identificationof the building work involved is necessary for the Council to, among other things,78 An example given in the affidavit evidence is that since 1988, 40 building consents have beenissued in relation to Hamilton Girls High School.79 The fact these matters are not pleaded in the Main Proceedings is understandable, as thoseproceedings concern alleged defective products supplied by CHH, rather than alleged defectivebuilding work.identify the relevant Council records. That in turn will enable identification of therelevant building consent and whether and when the Council issued a CCC.[127] Ms Hann states that given the lack of particulars to CHH's claims, the claimsdo not provide sufficient information for the Council to carry out all the steps thatwould ordinarily be taken to assess a claim against it. She also notes that in somecases, it has not been possible to link the school buildings listed in CHH's claim withany particular building consent issued by the Council.[128] Despite these difficulties, Ms Hann annexes to her affidavit 228 CCCs whichare said to have been issued prior to 21 December 2003. A schedule to Ms Hann'saffidavit lists the buildings by reference to the building number allocated by theMinistry in the Main Proceedings, the building description, the school, the relevantcouncil, the date of the CCC and a cross reference to a copy of the CCC itself. Aseparate schedule lists a further 53 CCCs issued between December 2003 andNovember 2006, relevant to the date upon which the Contribution Proceedings werecommenced.[129] In a separate affidavit filed in support of the Councils' application sworn byMr George Swanepoel (from the Far-North District Council and a member of theCouncils' steering group established for responding to CHH's claims), Mr Swanepoelalso speaks to the difficulties and obstacles in identifying the appropriate buildingconsents. He says that from discussions within and feedback provided to the steeringgroup, his understanding is these issues are common amongst the Councils.[130] In opposition to the Councils' application, CHH filed an affidavit sworn by MrDenver Simpson, General Counsel of the Charter Holt Harvey Group. Mr Simpsonexplains the broad background to and timeline of the Main Proceedings, includingcommunications between solicitors for the Ministry and CHH in relation to Schedule4 to the Ministry's statement of claim in the Main Proceedings, which lists each schoolbuilding which is subject to the Ministry's claim ("Schedule 4"). Schedule 4 allocatesa particular number to each school building, the approximate date upon which theShadowclad product was installed on each building (referred to as the "year ofsupply") and whether each building suffers from any one or more of particular pleadeddefects. Schedule 4 does not specify the building consent number or CCC whichrelates to the building works during which the Shadowclad product was installed.[131] Mr Simpson says that since the Main Proceedings were commenced,reviewing, updating and correcting Schedule 4 has been an ongoing exercise by boththe Ministry and CHH. Mr Simpson also comments briefly on the CCC's annexed toMs Hann's affidavit, and notes a number of inconsistencies in them, for example:(a) Some of the CCCs are unsigned;(b) Some have dates which do not match the "year of supply" for therelevant building in Schedule 4;(c) Some do not name the school to which they relate;(d) Many do not indicate the particular building to which they relate;(e) Some of the descriptions of the buildings in the schedules to Ms Hann'saffidavit do not match the descriptions and schools identified inSchedule 4.[132] Mr Simpson also notes that Ms Hann has no direct knowledge of the issue ofthe CCCs or the construction works to which they relate. Given this and the issuesidentified above, Mr Simpson concludes that "CHH cannot accept Ms Hann'sassertions at this stage." In reply, the Councils filed 42 affidavits from officers oremployees of particular councils, annexing the relevant CCCs issued by that counciland originally annexed to Ms Hann's affidavit. Mr Miles notes that in only one ofthose affidavits, that of Mr Cory Lang of Hamilton City Council, does the deponentset out the process by which he or she has reviewed the relevant council's files andidentified the particular CCCs which relate to the buildings referred to in the CHHclaim. In this context, Mr Lang explains that an initial review was carried out byHamilton City Council (referred to as the "First Review"), from which 77 buildingconsents were identified which "appeared" to relate to the buildings in CHH's claim.Mr Lang then refers to a "Second Review", which he describes as a lengthy exercise,which "allowed the Council to obtain an accurate assessment of the CCCs that relateto individual school buildings". Those (46) buildings are then listed in Schedule 1 tohis affidavit. Mr Lang also notes that, given the lack of particulars in CHH's claim,inferences had to be drawn in respect of some buildings and he lists those (13)buildings separately in Schedule 2 to his affidavit. The various inferences drawn areset out in that schedule. Schedules 3 and 4 follow the same format for buildings whereCCCs were issued between December 2003 and November 2006 (i.e. relevant to thecommencement of the Contribution Proceedings in November 2016).[133] CHH also filed an affidavit sworn by Mr Peter Jordan, who has experienceworking for various councils, who also speaks of the potential difficulties in theCouncils locating the correct CCCs.[134] Mr Miles submits the lack of any commentary in any of the other councilaffidavits as to how they went about identifying the correct CCCs is particularlyimportant, given Ms Hann, Mr Lang and Mr Jordan's explanations as to the difficultiesin trying to identify the relevant building consent reference and thus the relevant CCC.[135] CHH filed with its written submissions two schedules in which it identifieswhat it says is a continuing and large number of issues/anomalies in relation to theCCCs produced by the Councils. CHH's concerns include the following:(a) In respect of those CCCs identified by "inferences" as explained by MrLang from Hamilton City Council, the materials said to support thoseinferences are not before the Court;(b) A number of the CCCs pre-date at least one of the "years of supply" ofthe Shadowclad product as set out in Schedule 4;(c) Approximately 103 CCCs post-date the last pleaded "year of supply"by at least a year (and approximately half of those by at least threeyears), which gives rise to concerns as to the accuracy of the CCCs,given, absent agreement, a CCC is to be issued 20 working days of thedate of an application for a CCC;(d) There are inconsistencies between the CCCs produced by the Councilsand the construction start and end-dates in Schedule 4, including insome instances, CCC dates which precede the pleaded constructionend-date; and(e) Many CCCs produced by the Council include brief or genericdescriptions only of the building in question, which do not clearlycorrespond to or contradict the building descriptions in Schedule 4.[136] Mr Miles took me through a number of the entries in these schedules at thehearing, and I have also reviewed further entries on a sample/random basis inpreparing this judgment. I accept Mr Miles' submission that, on the face of thematerials at least, there do appear to be a number of issues and anomalies.[137] The Councils produced further (coloured) schedules at the hearing, seeking tocategorise the various CHH complaints.80 For example, buildings and CCCs codedblue are where no specific issue with the CCC produced by the Council has been raisedby CHH. Claims in respect of buildings coded orange and yellow are also said to besufficiently certain to be struck out at this stage, given the date of the CCC matches"exactly" with a review of building consents and CCCs that the Ministry and CHHthemselves carried out in late 2013/early 2014 (the "2013/2014 review").81 Thoseentries colour-coded pink are where the CCCs produced by the Councils have differentdates to that set out in the 2013/2014 review, but which the Councils say were stillclearly issued more than 10 years before CHH's proceedings were commenced.[138] Mr Miles submits it is inappropriate for me to rely on the 2013/2014 reviewfor the present strike out application. He submits that review was never conducted forthe purpose for which it is now relied on, was a preliminary exercise only at an earlystage of the proceedings, and that the schedules attached to CHH's submissions are amuch more detailed and sophisticated exercise.80 These schedules were provided to Carter Holt the day before the hearing.81 The process for and results of that review are explained in an affidavit of a Ms Tania Halpin, whois contracted to the Ministry and who has day-to-day oversight in relation to these proceedings.The result of the 2013/2014 review is a table produced by each of the Ministry and Carter Holtsetting out, where available, the building consent reference and CCC date for the buildings referredto in Schedule 4.[139] I interpolate to note that through consideration of the 2013/2014 review, theCouncils have identified some nine CCCs which they accept cannot properly be thesubject of a strike out. Those are colour-coded green in the Councils' schedules andthose entries must therefore fall outside the strike-out application.[140] While I have no doubt that not all of CHH's criticisms and concerns in relationto the CCCs produced by the Councils will be borne out,82 I am satisfied that there are,prima facie, sufficient anomalies and issues that make a global or generic strike outinappropriate. Mr Weston all but accepted this during the hearing, and accordinglytailored his submissions around a "descending hierarchy" of the colour-codedschedules, the highest being blue, where there is no issue or anomaly identified byCHH, the lowest being green, which as noted, clearly does not meet the requiredthreshold. Ultimately, Mr Weston submits I can be certain that CCCs issued forbuildings colour-coded blue, orange, yellow and pink were issued more than 10 yearsbefore the Third Party Notices were issued, or the Contribution Proceedingscommenced, such that CHH's claims in relation to them ought to be struck out.Mr Weston submits that those buildings colour-coded purple are "probably in" (i.e.can be struck out) and as noted, accepts those coded green cannot.[141] I have carefully considered the parties' evidence, submissions and the variousschedules produced. Ultimately, I am persuaded that CHH's claims in relation tobuildings that are colour-coded blue in the schedules produced at the hearing are soclearly time-barred that they ought to be struck out. While I accept the various councilaffidavits have not detailed the process engaged in to identify the relevant CCCs, theevidence does state that the CCC produced is the correct CCC in relation to theparticular building concerned. No inconsistencies, anomalies or other issues havebeen identified which calls into question that evidence. In other words, the CCCproduced fully "lines up" with the relevant entry in Schedule 4.[142] However, and while acknowledging the huge amount of work that has goneinto the evidence and schedules produced by the Councils, I am not persuaded that any82 Nor its complaints in relation to the accuracy and reliability of Schedule 4.remaining claims ought to be struck out at this stage on limitation grounds. I havereached this view because:(a) First, there are clearly a number of issues in tracing the various buildingconsents and CCCs, as explained by Ms Hann, Mr Lang and Mr Jordan.As noted, this is amplified by the lack of pleaded building consent andCCC references in the Main Proceedings or in CHH's claims. Andwhile Mr Weston submits any uncertainty has been created by CHH'sown default in providing proper particulars, he rightly accepts that Imust be certain the evidential material reaches the necessary threshold,irrespective of where the "blame" lies for that residual uncertainty.(b) Second, and as demonstrated by the tables attached to CHH'ssubmissions, there remain a range of inconsistencies with the remainingbuildings and CCCs located for them, though with various degrees of"seriousness" of the issues identified. Given this, I would need to besatisfied of the process that was undertaken by each council to locatethe relevant CCCs and ensure they correlated to the building inquestion, to demonstrate that the issues identified by CHH do not infact exist.(c) Third, while I was initially minded to strike out claims in relation tobuildings colour-coded orange and yellow, on reflection, I am notpersuaded it would be appropriate to do so. I am hesitant to strike outthose claims solely on the basis they match exactly with the tablesproduced as a result of the 2013/2014 review, when there remaininconsistencies in relation to the CCCs identified as set out in theschedules to CHH's submissions. While I accept the tables producedas a result of the 2013/2014 review were no doubt the result of a carefulexercise (as Mr Flanagan for the Ministry submits), that review was notconducted for the purpose for which it is now being used, and there isno particular evidence before me as to the reliability or otherwise of theresulting tables for strike out purposes. Further, I note in thecorrespondence under cover of which the Ministry and CHH exchangedtheir respective tables, the Ministry and CHH acknowledged that "gapsremain" in the tables for various reasons; in some cases the buildingconsent date is "significantly different" to the "year of supply" set outin Schedule 4 (with there being no evidence before me as to why thiswould be the case); that given the sheer scale of the task, it is"inevitable" there will be omissions and errors in the tables; and that itis "possible that some human errors may have been made by the reviewteam".(d) Fourth, and in relation to those claims colour-coded pink, the Councils'evidence of the dates of CCCs and the dates set out in the 2013/2014review are different. And while the dates still fall within a range whichputs them more than 10 years prior to either the Third Party Noticesbeing issued or the Contribution Proceedings being commenced, thefact there are such differences does call into question the accuracy ofthe underlying information. For that reason, I accept Mr Miles'submission that it is not sufficient for strike out purposes to say that theCCC has been issued at "about the right time".(e) Finally, in relation to those buildings colour-coded purple, the samecomments made at (b) above apply, with the further issue that there isno "supporting" information such as matching CCC dates set out in the2013/2014 review. Mr Weston appeared to accept at the hearing that atleast on the present materials, the buildings falling within this categorywere at the margins of being amenable to a strike out application.[143] I should emphasise however, that the above conclusions do not exclude thepossibility of these issues being dealt with other than at trial. The date of a particularCCC is a quite specific issue. Further, confirming that date to the necessary standardto exclude it from the claim will largely be a documentary exercise. It may be that aprocess can be agreed that with some further evidence, certainty can be achieved so asto enable the parties to reach agreement on whether a claim can properly remain withinthe proceeding, or the Court to make a ruling if required. That might be the case, forexample, in relation to those buildings colour-coded yellow and orange, with furthercomfort around the 2013/2014 review and where the only issue raised by CHH is a"description" issue (which I view as the least "serious" of the issues raised in CHH'sschedules attached to its submissions).83 Given the nature of this proceeding, ratherthan simply concluding that all matters must now proceed to full trial, it is incumbentupon the parties, and the Court, to consider other practical ways of dealing withparticular and defined issues, such as the date of the remaining CCCs in issue.Second ground – delay in service is an abuse of processCouncils' submissions[144] This ground of the Councils' application largely overlaps with the first ground.The Councils say CHH's conduct in issuing the Third Party Notices in December 2013but not serving them until December 2016 demonstrates that they were not issued in agenuine attempt to pursue claims for contribution, but as an "insurance policy" againstfailure in its attempts to strike out the claims against it. The Councils say"warehousing" claims in this way is an abuse of process and as the delay has causedthe Councils serious prejudice, they ought to be struck out.[145] It is fair to say that this ground was not pressed firmly by the Councils at thehearing as a separate and free-standing basis upon which to strike out or set aside theThird Party Notices.CHH's submissions[146] CHH relies on its primary submissions in relation to the first ground of theCouncils' application. As noted, it says there was a valid reason for delaying service,such that the delay cannot be categorised as an abuse of process in and of itself. Asalso noted, it submits the Councils have not demonstrated any real prejudice from thedelay in any event.83 Particularly issue 4(a).Analysis – was the delay in service of the Third Party Notices an abuse of process?[147] Largely for the reasons already given in relation to the first ground of theCouncils' application, I do not consider the delay in service was an abuse of processwarranting the Third Party Notices being struck out.[148] So-called "warehousing" of claims can amount to an abuse of the court'sprocesses.84 However, in the cases to which the Councils refer, the delays weresubstantially longer than in this case, and with no real or genuine reasons for it. WhileI have found the delay in this case to be inordinate and inexcusable, CHH has givenits reasons for delaying service, and I bear in mind the particular context to thisextraordinary set of proceedings. Moreover, given the absence of any seriousprejudice to the Councils as a result, I am not satisfied that the delay alone amounts toan abuse of process warranting the sanction of the Third Party Notices being struckout in their entirety.Third and fourth grounds – CHH's claims are not sufficiently particularised/noevidential foundationCouncils' submissions[149] These grounds of the Councils' application apply to both the Third PartyNotices in the Main Proceedings and the Contribution Proceedings.[150] Issues concerning particulars are common in leaky building cases. TheCouncils refer to Kós J's judgment in Platt v Porirua City Council, in which hisHonour summarised the basis requirements for an adequately particularised pleadingin a leaky building case:85[24] The plaintiff in a negligence case must plead with particularity therespects in which the defendant is said to have fallen beneath the standard ofcare required of it. If proof and pleading are indirect (in, say, a case based onthe defendant's failure to identify defective construction design orperformance by third parties), the plaintiff needs to adequately particularisethe following:84 Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 (CA); Falconerv Southern Cross Building Society HC Auckland CIV-2009-404-1418, 19 August 2009.85 Platt v Porirua City Council [2012] NZHC 2445.(a) what, physically the defects are that caused loss (i.e. the"where");(b) the particular standards that the third parties failed to meet inthe case of each defect, either individually or collectively (i.e."how" they were "defects");(c) the circumstances in which the defendant came to have aninspectoral or supervisory role (including, normally, when);(d) the standard(s) required of the defendant in undertaking thatrole;(e) particulars of the breach of duty by the defendant; and(f) the loss thereby caused (that is — the loss caused by the thirdparties' defective performance which would have beenavoided by the defendant performing its duty to the requiredstandard).These cases typically are "double standards cases" in the sense that two levelsof standards are in issue: those that needed to be conformed to by the designer,builder or contractor, and those that needed to be conformed to by the Councilin identifying the prior breach of standard by those other parties.[151] In this case, the Councils say CHH has given no particulars at all of the allegeddamage to any particular building included in its claims against the Councils. Rather,all it has done is refer to a number of generic or common weathertightness issues withbuildings of the type, without specifying in relation to any of the buildings:(a) Which aspects of the Building Code or Building Acts are said to havebeen contravened;(b) Which aspects of the CHH cladding system specifications were notfollowed by building contractors and other professionals;(c) Which of the generic or common building defects (listed in schedule 2to CHH's statement of claim) are said to occur and at what location(s)on each building; or(d) How it is alleged the relevant council is liable for the particular defects.[152] In this context, the Councils say that while on a much larger scale, CHH'spleadings are in substance no different to those in Imperial Gardens, where the originalstatement of claim was said to be a "nullity" for a lack of particularisation.86 In thatcase, the pleading simply alleged that the relevant building was "constructed withbuilding defects" and that "the defects have resulted in damage".[153] The Councils also note that, despite the Main Proceedings having beencommenced in 2013, as at March 2017, CHH has only inspected around 74 buildingsout of more than 880 in the claim. Given this, the Councils say that for the vastmajority of the buildings in issue, CHH has no evidential foundation for the pleadeddefects. This is said to be reinforced by the fact that not all of the buildings referredto in the Main Proceedings are said to suffer from damage resulting from wateringress.87 On that basis, the Councils ask how can CHH in turn allege that all thebuildings the subject of its claim have been build contrary to the Building Code?[154] To the extent CHH points to the Ministry's own failure to include suchparticulars in the Main Proceedings, the Councils say the Ministry is not required toinclude such particulars in its claim, given its claim is not one concerning defectivebuilding works. Rather, it is a defective product case, irrespective of how a buildinghas been constructed. As such, the Councils say the Ministry will never provide theparticulars CHH ought to have included in its own claims against the Councils.[155] The Councils therefore say that given the lack of particulars in relation toindividual buildings, they simply do not know the case they need to meet. Ms Hannand Mr Lang explain these difficulties in their affidavits. Ms Hann explains that it hasmade it difficult if not impossible for the Councils to know what experts they shouldbe instructing in relation to each building, what other parties might be relevant to joinas further parties and so on.[156] Given these issues and CHH's failure over a number of years to include anyparticulars in its claim, the Councils say CHH should not be given any furtherindulgence. And despite the fact that if the claims are struck out now, many will not86 Body Corporate 348047 v Auckland Council [Imperial Gardens Apartments] [2014] NZHC 2971.In that case, the pleading simply alleged that the building was "constructed with building defects"and that "the defects have resulted in damage" to the building. No further particulars were given.87 Approximately 139 of the 833 buildings the subject of the Main Proceeding.be able to be recommenced due to limitation issues, the Councils say any resultingprejudice is entirely of CHH's own making.CHH's submissions[157] CHH immediately, and properly, acknowledges that its pleadings do notpresently comply with Platt. However, CHH says that strike out in the currentcircumstances is not the appropriate remedy. Rather, it says that the proper course isa direction that particulars be provided under r 5.21. This is particularly so when therehas been no application by the Councils for further and better particulars.[158] CHH emphasises the quite unique nature of these proceedings. It notes thatfor its claims to have been fully particularised at the time they were commenced, itwould have had to inspected over 1000 buildings which were then the subject of theMinistry's claim, at a time when the Ministry had not itself surveyed all thebuildings.88[159] CHH also strongly resists the suggestion that its claim is of a similar nature tothat in Imperial Gardens. Rather, CHH included in its claims all the particulars itcould from the Ministry's own proceeding, such that the notices were issued in goodfaith and with as much information as was then available. It further says there is aclear factual and evidential foundation for its claims, rather than the proceedingssimply being a "placeholder" as in Imperial Gardens. In this context, CHH refer to:(a) A 2011 report prepared by Prendos Limited, retained by the Ministry inadvance of it commencing the Main Proceedings. Prendos conducteda visual survey of 1074 buildings in the Auckland area. CHH notes thatthe Prendos report indicated that building defects were present in manyof the buildings surveyed.(b) A 2012 report by Hampton Jones which reported on a visual survey of6,130 school buildings across the country, which comments on the88 By September 2014, the Ministry had surveyed approximately 250 buildings which were thesubject of its claim. However, all buildings had been inspected, bar one, by September 2015.overall design aspirations for school buildings which are said to often"not align with good weathertightness principles".(c) The evidence of Neil Avery of Kaizon Limited, building surveyorsengaged by CHH for the purposes of this litigation. Mr Avery refers tothe Prendos and Hampton Jones reports, and states they are consistentwith his own observations having inspected some 74 buildings thesubject of the Ministry's claim. Mr Avery states that "all buildingsinspected and reported on which have been found to suffer from wateringress have also featured installation defects which have caused wateringress". Mr Avery lists "common" such defects as being:(i) Unsealed plywood edges.(ii) Incorrect ground clearances.(iii) Inadequate clearance to subfloor battens.(iv) Incorrect nail placings.(v) Un-flashed/unsealed window joinery to cladding junctions.(vi) Inadequate cladding overhang to bottom plate.(vii) Flat shoulder of the Z-flashings.(viii) Z-flashings cut short of corners.(ix) Missing stop-ends to Z-flashings.(x) Inadequate capillary gap behind the base of the cladding.8989 I note that these defects are different to and only partly overlap with the 27 alleged constructiondefects set out in Schedule 2 to CHH''s's Second Amended Statement of Claim dated 20 March2017.Mr Avery says this is not a complete list of the defects identified (ofwhich "many more" have been present), but is a selection of commondefects only.(d) Mr Jordan's evidence, who says the above defects would have beenidentified by a prudent council inspector if he or she was following aproper inspection regime.[160] CHH submits the proper approach is for particulars relating to specificbuildings to be provided progressively as a matter of case management as and whenthey become available. It notes a similar approach was adopted in relation to theprovision of particulars by the Ministry, where the Court recognised the practicalimpediments of the immediate provision of full particulars.90 In relation to the74 buildings already inspected by CHH, particulars in relation to those can be providednow, but CHH says they have not been provided to date as there are proposals as to aformula or template to be adopted, such that only in respect of those templates willparticulars be required.91[161] Accordingly, while its pleadings do not currently comply with the guidancegiven in Platt, CHH says the prejudice to the Councils is small compared to themassive prejudice to CHH were the proceedings to be struck out now, without therefirst being an opportunity to provide appropriate particulars.Analysis – ought CCH's claims be struck out for lack of particulars?[162] I am concerned at the present state of CHH's pleadings, and have a sense ofdisquiet at any prospect of the Court being seen to sanction the broad and generic typeof pleading in its present form. Further, there is an irony in CHH's present position,given the Councils' complaints in relation to CHH's pleadings almost mirror CHH'sown complaints in relation to the Ministry's earlier pleadings in the Main Proceedings90 Minister of Education v James Hardie New Zealand [2014] NZHC 2432 at [40] and [122]-[127].91 No further information or evidence was presented to me as to these proposals.and which were the subject of Fogarty J's judgment on CHH's application for furtherand better particulars.92[163] Despite this, I am not satisfied that striking out the claims now is theappropriate remedy. I say this for the following reasons.[164] First, I take into account the context of these particular proceedings. Theclaims do not concern a single isolated building, as in a "usual" leaky building claim.It would accordingly be artificial to ignore the practical realities in a case such as this,including the (unlikely) prospect of the Ministry, or CHH, having fully particularisedall aspects of their claims at the outset.[165] Nevertheless, I agree with and endorse Fogarty J's observations made in hisjudgment on CHH's own application for further and better particulars that, despite theparticular nature of these proceedings:93[40] It does not follow, however, that the plaintiffs [here, CHH] shouldbe released from the usual pleadings as to damage expected in a negligenceclaim and, indeed, the usual particulars expected in other causes of action.[166] Second, there has been no application by the Councils for further and betterparticulars. This would be the orthodox first step in response to a pleading which isdeficient in particulars, as in the case of CHH's own such application in the MainProceedings. Striking out the claim is, in a sense, a matter of last resort, and the Courtwill have regard to whether the defects can be remedied by way of further particulars.There is no suggestion by CHH that it ought not to provide further particulars. Thereal issue is when and how.[167] Third, there has been no serious prejudice to the Councils since being servedwith the proceedings as a result of the inadequate particulars.94 I fully accept that onthe basis of the present pleading, it is difficult for the Councils to properly understandthe claims against them and how to respond. That difficulty should not be92 Minister of Education v James Hardie New Zealand [2014] NZHC 2432. See, for example, [10]where it is recorded that CHH was seeking "particulars of the nature of damage to each of thebuildings and of the various causes of that damage for each of the buildings". See also [23].93 At [40].94 I.e. rather than prejudice as a result of the delay in serving the proceedings.underestimated. However, there is no suggestion that prejudice cannot and will not be"remedied" upon the provision of the further particulars required.[168] Fourth, I consider CHH's pleadings to be somewhat removed from those inImperial Gardens. Here, there is at least some evidential foundation for the allegeddefects.95 Therefore I do not consider the statement of claim to be a nullity or abuseof process in its own right.[169] Accordingly, I consider the appropriate remedy is to order further and betterparticulars and a process for those to be provided on an ongoing and regular basis.Ultimately, CHH simply needs to get on and provide the necessary particulars withoutfurther delay. For example, it ought to be able to give particulars for those 74 buildingsinspected at the time of Mr Alvey's affidavit (and any further inspected since then) inrelatively short order.[170] In addition, Mr Alvey explains that the buildings are being inspected by CHHas they are scheduled to be remediated or demolished. I assume this is in accordancewith the inspection protocol agreed between the Ministry and CHH. I presently havelimited visibility of that protocol, but understand its primary purpose is thepreservation of evidence at trial. If so, thought may well need to be given to whetherinspections by CHH, for the purpose of particularising its claims against the Councils,can be carried out with considerably more regularity and speed.96 Certainly 70 oddbuildings over a period of some years is inadequate. The Ministry would also need tobe involved in any such discussions, given access to school buildings is, I understand,a carefully manged process.[171] I do not propose to make any formal orders at this stage as to the particulars tobe provided by CHH, or the timeframe or process to be employed. Given the primaryrelief sought by the Councils was that the claims be struck out, these matters were notcanvased before me at the hearing. It is appropriate I hear further from the parties on95 See the evidence summarised at [159] above.96 For example, in an affidavit sworn by Susanna Stoddart on behalf of CHH, it was noted that, as ofJune 2014, the last inspection under the then interim inspection protocol had taken place inDecember 2013 and it did not appear any further buildings were scheduled for re-clad (and thusinspection) until late 2014 at the earliest.these matters. Presumably the particulars to be provided will be along the lines ofthose requirements in Platt, tailored to the present case as required.[172] If the particulars to be provided and/or the process to be followed cannot beagreed, a short conference or hearing with the parties can be convened to finalise theform of the orders. I would hope that with sophisticated parties and counsel involved,a large measure of agreement will be able to be reached on these matters, particularlygiven CHH does not dispute that it must particularise its claims to the standardrequired by Platt.Sixth ground –Ministry and CHH's claims - "same damage"Councils' submissions[173] As noted at [4] above, in order for CHH to claim contribution from theCouncils, CHH and the Councils must be liable for the "same damage" suffered by theMinistry. The Councils say the Ministry's and CHH's claims are so different thatCHH's claim for contribution cannot be in relation to the "same damage".[174] In summary, the Councils say the Ministry seeks damages resulting from thesupply of a faulty product, whereas CHH seeks contribution from the Councils inrelation to faulty building work. The Councils say the Ministry is not seeking damagesfor faulty building work and CHH will not and cannot be liable to the Ministry for thatwork. On that basis, it cannot seek contribution from the Councils.[175] Mr Weston acknowledged in argument that "at the margins", where theMinistry alleges consequential damage to other building elements, there may bedifficulties for the Councils. However, the Councils highlight that a significantnumber of buildings listed in Schedule 4 are listed as having no such consequentialdamage or whether there is such damage is "not known". The Councils say that inrelation to those buildings, the only "harm" or damage the Ministry can have suffered,and therefor can claim from CHH, is the installation of the defective Shadowcladproduct and accordingly the costs to remove the product and re-clad the buildings.Given that damage or harm is limited to the defective product itself, the Councils saythis is a clear example of damage to which the Councils cannot possibly havecontributed.[176] Further, relying on Altimarloch, Mr Weston submits CHH can only ever beliable for damage caused by its defective product. It cannot be liable for damagedcaused by other defective building works or elements. Given that, to the extent itcould "pass off" some of its liability to the Councils, it would "over recover". In otherwords, why should CHH not be 100 per cent liable for the damage caused by itsproduct, rather than, say, only 80 per cent?CHH's submissions[177] CHH submits the Councils wrongly focus on the alleged cause of the damageor harm to the Ministry, rather than the damage or harm itself. It says that the loss,harm or damage pleaded by the Ministry is, in respect of each building, a buildingwhich does not comply with the relevant Building Code and/or Building Act, and thusthe costs it has or will have to outlay to remedy each building to the appropriatestandard. When looked at in that way, CHH says that it and the Councils may havecontributed to and be liable for that same damage, albeit through different causes;CHH – as the result of an alleged defective product; the Councils – as a result of theiralleged failure to properly review/inspect/certify the relevant building works.[178] Mr Miles also submits this is the case irrespective of whether the Ministry'sclaim in relation to any one building is limited to the cost of replacing the cladding orextends to replacing and remediating other damaged structural elements. In the formercase, CHH says the damage, being the outlay to replace the cladding, has beencontributed to by faulting installation or fixing of the cladding product. On that basis,and there being no argument on this application that the Councils could not be liablefor failing to recognise that faulty installation, CHH and the Councils can quiteproperly be said to have contributed to the "same damage".[179] Finally, Mr Miles emphasises these matters are intensely factual, making itvery difficult to draw any bright lines for the purposes of a strike out application. Hepoints to observations of Glazebrook J in Hotchin that the approach adopted by themajority in that case (discussed below) broadens the scope for contribution and makesthese issues more difficult to determine on a strike out application. Mr Milesaccordingly submits it would be quite unsafe to strike out the entirety of CHH'scontribution claims, both in relation to buildings where the Ministry's loss extends tothe cost to remediate alleged consequential structural damage and where the pleadedloss is limited to replacing the cladding itself.Analysis – are the Ministry and CHH's claims in relation to the "same damage"?[180] It is of course crucial to determining whether the two claims are in respect ofthe "same damage" to understand the nature and content of the harm or damage beingalleged by the Ministry, for which CHH may be liable and seek contribution from theCouncils.[181] I therefore start by reviewing the Ministry's pleadings, and in particular, theharm or damage pleaded by it. I then turn to the Supreme Court's judgment in Hotchin,the leading New Zealand authority on the meaning of "same damage" as it used in s17 of the LRA. I then refer briefly to the Supreme Court's observations as to the natureof the Ministry's claim against CHH in the Strike Out Judgment. Finally, I apply thetest for "same damage" from the majority judgments in Hotchin to the claims in thiscase.[182] The Ministry's current pleading is its sixth amended Statement of Claim dated7 June 2017. It is possible to focus on the negligence cause of action (all other causesof action ultimately pleading the same loss).[183] After the usual preambles as to the parties and factual background, at paragraph38, and by reference to a list of alleged defects set out in Schedule 2, the Ministryalleges the Shadowclad product contains a range of inherent defects (defined as the"Cladding Sheets Defects"). Central to these defects is that the product is prone toand/or takes in and retains moisture. The list of Cladding Sheets Defects also allegesthat having taken in and retained moisture, the Shadowclad product tends to transferabsorbed moisture to timber framing and building paper. The claim goes on to allegethat:9797 At [39].Carter Holt Harvey's Cladding Sheets and Cladding Systems, when directlyfixed on a building frame (without a cavity) of a Light Building, contain andcontained each of the inherent defects set out in Schedule 2, including theCladding Sheets Defects ("Cladding System Defects") and summarised[below].[184] The claim then pleads that, as a result of the Cladding Sheets Defects andCladding System Defects, the Cladding Sheets and Cladding Systems do not routinelyachieve compliance with:98(a) Recognised building standards;99(b) The Building Code, including clauses E2 and B2;100 and(c) The Building Act 1991 (including s 7(1)) and the Building Act 2004(including ss 16 and 17).101[185] After alleging certain steps that would need to be taken to mitigate the failuresin the Shadowclad product (referred to as "Risk Characteristics"), the claim pleads thefollowing:102As a result of the Cladding Sheet Defects, the Cladding Systems Defects, andthe Risk Characteristics, Carter Holt Harvey's Cladding Sheets and CladdingSystem are likely to cause:(a) The buildings on which they are installed to fail to comply with theRecognised Building Standards, the Building Code Requirements,and the Building Acts (b) The staff and students of buildings on which they are installed tosuffer:(i) Interference with the education of children at the Schools; and(ii) Interference with their health and safety.98 At [40].99 Listed in Schedule 6, being a range of timber related and other New Zealand Standards.100 The Building Code "prescribes functional requirements for buildings and the performance criteriawith which buildings must comply in their intended use" (s 16, Building Act 2004). B2 of theBuilding Code concerns durability and E2 external moisture.101 Which require compliance with the Building Code.102 At [42].[186] Similar matters are pleaded at paragraph [48] of the claim, by reference to theSchool Buildings, and defined as the "Failures".[187] Finally, the claim pleads that, as a result of the Failures in relation to the SchoolBuildings, the Ministry has and will suffer the following loss (defined as "Loss"):103(a) The cost of repairing and replacing the Cladding Sheets and theCladding Systems on the School Buildings;(b) The cost of repairing and replacing the structural elements (includingbuilding framing) of the School Buildings that have been damaged by:(i) moisture ingress behind the cladding and within the SchoolBuildings; and(ii) decay to timber framing, or corrosion of steel framing, and thepresence of mould and/or fungi;(c) The costs of preventing staff and students suffering interference:(i) with the education of children;(ii) with their health and safety;(d) Diminution in value of the school buildings;(e) The cost of providing replacement administrative and staff facilitiesand additional resources on account of interruptions to the operationof the Schools;(f) Lack of access to and use of portions of the Schools while necessaryrepairs and remediation works are being undertaken; and(g) The costs of inspecting the School Buildings to ascertain the extent ofthe problems particularised at paragraphs [49](a) to (c) above,[188] Accordingly, the essential harm or damage alleged by the Ministry is SchoolBuildings which fail or will fail to comply with the Building Code and Building Acts,and the resulting cost of repairing and replacing the cladding and any damagedstructural elements. The cause of that harm or damage is said to be, in short, theinstallation of the defective Shadowclad product and systems on the School Buildings.[189] CHH's key allegations against the Councils are set out at [46] above. In itsclaim against the Councils, CHH goes on to plead that, in the event CHH is liable to103 At [49].the Ministry for any of the Loss (as defined in the Ministry's claim), then each of theCouncils is a concurrent tortfeasor in relation to that Loss.104[190] As noted above, the leading New Zealand authority on "same damage" for thepurposes of s 17 of the LRA is the Supreme Court's 2016 decision in Hotchin. Butbefore turning to that decision, I note that any difference between the concepts of"loss" and "damage" and "harm" should not be material to s 17(1)(c) claims.Lord Bingham explained this in the House of Lords decision in Royal BromptonHospital NHS v Hammond:1056. When any claim for contribution falls to be decided the followingquestions in my opinion arise. (1) What damage has A suffered? (2) Is B liableto A in respect of that damage? (3) Is C also liable to A in respect of thatdamage or some of it? At the striking-out stage the questions must be recastto reflect the rule that it is arguability and not liability which then falls fordecision, but their essential thrust is the same. I do not think it mattersgreatly whether, in phrasing these questions, one speaks (as the 1978 Actdoes) of "damage" or of "loss" or "harm", provided it is borne in mindthat "damage" does not mean "damages" (as pointed out by Roch LJ inBirse Construction Ltd v Haiste Ltd [1996] 1 WLR 675, 682) and that B'sright to contribution by C depends on the damage, loss or harm for whichB is liable to A corresponding (even if in part only) with the damage, lossor harm for which C is liable to A. This seems to me to accord with theunderlying equity of the situation: it is obviously fair that C contributes to Ba fair share of what both B and C owe in law to A, but obviously unfair that Cshould contribute to B any share of what B may owe in law to A but C doesnot.[Emphasis added][191] Although members of the New Zealand Supreme Court in Hotchin may haveadopted different approaches to the main findings of Royal Brompton Hospital,William Young J (a member of the majority) affirmed Lord Bingham's commentsquoted above.106[192] Turning back to Hotchin, Mr Hotchin was a director of the investmentcompany Hanover Finance. Guardian Trust was the Hanover Finance's trustee, andhad certified that the company was complying with all laws and regulations, and wasacting in a prudent and business-like manner. After Hanover Finance collapsed in late104 At [24].105 Royal Brompton Hospital NHS v Hammond [2002] UKHL 14, [2002] 1 WLR 1397.106 Hotchin v New Zealand Guardian Trust Company Ltd [2016] NZSC 24, [2016] 1 NZLR 906 at[188].2008, it became apparent that the company's prospectus may have included misleadingstatements. The FMA took civil proceedings against Mr Hotchin in respect of theprospectus. The parties settled, albeit with Mr Hotchin strenuously denying liability.[193] Mr Hotchin then issued proceedings against Guardian Trust, seekingcontribution as a joint tortfeasor under s 17(1)(c) of the LRA, on the basis thatGuardian Trust had failed to properly supervise the operation of the company inaccordance with the certification.107 Guardian Trust applied to strike out the claim onthe basis that the claims did not involve the "same damage".[194] The High Court and the Court of Appeal agreed that Mr Hotchin's contributionclaim should be struck out. Both courts said the damage was different, with the lossarising from the falsity of the prospectus being distinct from loss arising from theGuardian Trust's failure to supervise and intervene in the company during itsdeterioration. The Court of Appeal also said Mr Hotchin and the Guardian Trust oweddiffered duties to investors, and that claims for contribution under s 17(1)(c) requireshared obligations giving rise to common liability where the nature of the harm is thesame or indivisible.[195] By a majority, however, the Supreme Court allowed the claim against GuardianTrust to proceed. Elias CJ, William Young and Glazebrook JJ adoped a broadapproach to the meaning of "same damage" and overruled the Court of Appeal'srequirement of common obligations. Each member of the majority explained theirreasoning in slightly different ways.[196] Elias CJ linked s 17(1)(c) to the principle that contribution should be availablewhere a plaintiff could proceed against either defendant in respect of the damage, andthat either could be liable for that damage (whether in whole or in part).108 Her Honourwent on to make the following points:(a) "Same damage" is not a term of art. It does not mean "substantially ormaterially similar". Nor does it mean contribution requires that the107 It also sought contribution under common law equitable contribution.108 At [140].concurrent tortfeasor be liable for the same measure of damages.109Care is needed not to be over-influenced by the possibility of differentformulations of the meaning.110(b) Contribution does not turn on cause of action. The "same damage" mayarise out of different fault and circumstances, and so the basis forliability in tort is irrelevant.111(c) It is not necessary to the damage to be coextensive. Contribution willbe available where there is overlap.112(d) Whether damage is the "same damage" is a question of fact and degreeand is, to some extent, a matter of impression.113[197] Glazebrook J expressed general agreement with William Young J's views (seebelow).114 She emphasised that "the same damage" should interpreted broadly, in amanner consistent with the LRA's remedial policy:[73] In my view, the words of the statute require only the same damage.These words should not be given a strained or narrow meaning but beinterpreted in line with the policy of the 1936 NZ Act, which was a remedialstatute intended to provide a broad basis for contribution. Admittedly, this waspassed before there were extensive economic torts, including negligentmisstatement. But that is no reason not to interpret the words in line with theoriginal policy.[198] Her Honour explained that the LRA's policy was to allow a right ofcontribution where the same damage was caused by the separate, wrongful acts ofseveral persons.115 Glazebrook J framed the losses in the case before her broadly,being the loss in value of the investments. She did not consider that s 17(1)(c)necessitated legal analysis of the claims in search of common liability, emphasising109 At [137].110 At [138].111 At [144].112 At [142], [144].113 At [139].114 At [70]-[72].115 At [74], referring to Law Revision Committee Third Interim Report (Cmd 4637, 1934) (UK).that contribution will be available where there is a single harm to which the differenttortfeasors contributed in different ways.116[199] Her Honour acknowledged this approach may expand the scope forcontribution, that it could draw in more third party claimants into lengthy trials, andlengthen trials for plaintiffs.117 She said these drawbacks were "the price necessary tosecure simplicity and a just result."118 Glazebrook J also observed that not all caseswill be able to be dealt with on the "just and equitable" ground (of s 17(2)) at a strike-out stage, given the wide variety of circumstances that can be taken into account.[200] William Young J gave a comprehensive judgment which reviewed the historyof contribution, case law from abroad, and the use of multiple analogies. His Honour'sfocus was on the consequences of the tortfeasors' actions on the investors, and hebroadly framed this consequence as the loss of investment. For the purpose of thepresent case, however, it only need be said that his views broadly aligned with EliasCJ and Glazebrook J.[201] Perhaps more significant, however, are William Young J's dicta as tocontribution in defective building cases. His Honour noted that although theobligations of builders and local authorities are distinct, claims for contribution inrespect of them have been accepted without much analysis:[198] Contribution issues often arise in respect of claims in relation todefective buildings and, particularly in New Zealand, leaky buildings. In atypical New Zealand case, the owner of a leaky building will have claimsagainst the builder (which New Zealand courts accept can be brought in tort).As against the builder, the claim in tort will be based on breach of a duty ofcare associated with compliance with the Building Code. As against the localauthority, the claim will be for breach of a duty of care associated with itsinspection and certification functions. The damage suffered by the plaintiffwill be a combination of (a) the laying out of money for a defectivebuilding and (b) the cost of ensuring that the building complies with theBuilding Code.[199] In this situation, the obligations of the builder and local authority aredifferent in character; the obligations of the former being addressed to theconstruction of a Code-compliant building and those of the latter primarily towithholding certification in respect of non-compliant buildings. In practice,116 At [82], [89].117 Her Honour acknowledged that some cases could be dealt with by requiring separate trials.118 At [72].claims for contribution in such circumstances have been accepted withoutmuch analysis.[Emphasis added][202] His Honour went on to note that England's more restrictive approach tocontribution (which requires "common liability") might lead to results in the buildingsphere which, to New Zealand eyes, seem "a little odd". His view was that a builder,its construction engineer, and the building owner's employed engineer can all be liablefor contribution as the (same) damage is "the defective state of the building".119[203] O'Regan and Arnold JJ would have dismissed the appeal. They were of theview that the House of Lords decision in Royal Brompton made it clear that "samedamage" required common liability, and that a legal analysis of the claims wasnecessary to assess this:[260] Our review of these cases leads us to conclude that the inquiry as towhether two tortfeasors are liable for the same damage requires a legalanalysis of the claims against each of them to determine whether thetortfeasors have a common liability to the plaintiff. [263] If the damage caused by Mr Hotchin's negligent misstatement isdefined in a generic sense as "lost money", then it could be argued that, asGuardian Trust's negligence has, in the broadest sense, caused the investors tolose money, the damage caused by Mr Hotchin and Guardian Trust is the samedamage. That is the underlying premise of Mr Gedye's argument and of theapproach taken by the majority. We acknowledge that some of the casesprovide support for that broad approach to defining "same damage" in casesinvolving economic loss. For the reasons we will come to when analysingthose cases, we consider s 17(1)(c) requires an approach to the "samedamage" analysis that assesses the damage caused by each tortfeasor byreference to the claim made against it and asks whether the tortfeasoragainst whom contribution is sought has a common liability with thetortfeasor seeking contribution for the damage caused by the latter, inwhich case they will be liable for the same damage.[Emphasis added][204] I am of course bound by the majority approach in Hotchin.119 At [200]-[202].[205] Before applying the approach adopted by the majority in Hotchin to this case,it is relevant to note some further observations by the Supreme Court in relation to theMinistry's claim in this case, in the Strike Out Judgment:120(a) First, it summarises the Ministry's claim against CHH as follows:121The respondents say that a large number of school buildings havebeen affected by weathertightness issues and allege that theseproblems have arisen because the cladding sheets and systemssupplied by CHH are defective.(b) Second, it notes that:122It is alleged that not only do the cladding sheets cause damage tobuildings, but they also provide an environment in which fungalspores can grow, which can be harmful to human health wheninhaled.(c) Third, it records counsel for the Ministry's submission that:123it was an essential part of the respondents' claim that thecladding sheets manufactured and supplied by CHH were not onlyunfit for purpose, but also caused damage to the buildings ownedor managed by the respondents because they not only absorbmoisture, but transferred it to other parts of the building, causingthose other parts to rot.(d) Fourth, the Court also notes that:124We were given to understand that the claim by the respondents is,in relation to most buildings covered by the claim, a claim not onlythat the cladding sheets are defective, but that they have causeddamage to structures. Similarly, the creation of spores from rottingwood has given rise to health risks. It may be that when the factsare fully known, it will become apparent that at least some claimsare only in relation to the defectiveness of the cladding sheetsthemselves.[206] Finally, I note that when considering CHH's submission in the Strike OutJudgment that a duty of care ought not to exist as between it and the Ministry becauseof its potential inability to seek contribution from parties involved in the construction120 Carter Holt Harvey v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78.121 At [1].122 At [8].123 At [67].124 At [68].of the school buildings (due to limitation issues), there was no suggestion in either thesubmissions or the judgment that contribution would not be available because theclaims would not relate to the "same damage". I immediately accept that particularissue was not before the Court in the Strike Out Judgment, but simply note that anyimmediate conceptual difficulty in CHH bringing a contribution claim on the basisthere was no "same damage" did not arise as a relevant factor.[207] Applying the approach to "same damage" mandated by the majority inHotchin, I am satisfied that it is arguable, for the purposes of a strike out application,that the Ministry's claim against CHH and CHH's claim against the Councils is inrelation to the "same damage".[208] Turning first to those buildings in respect of which it is claimed that, not onlyis the Shadowclad product defective, but also the product has caused damage to thebuilding structures itself, the relevant harm or loss alleged is the defective state of thebuilding (from a weathertightness perspective) and the resulting cost to remediate thebuilding so as to comply with the Building Code and Building Acts. It seems to me tobe artificial to suggest that it is simply not possible for both a defective product anddefective building works (which a territorial authority ought to have recognised) tohave both contributed to that same damage. In "traditional" leaky building cases, therewill often by multiple, separate causes of the same damage; for example, defectivebuilding techniques; defective design; defective waterproofing application and so on.While not in any way suggesting the Ministry's claim is a "traditional" leaky buildingclaim (as the Supreme Court made clear in the Strike Out Judgment it was not), Icannot see why a defective product cannot be added to that "list" of potentialcontributors. Accordingly, and despite the Ministry's claim being a defective productclaim and CHH's claim being a defective building works claim, the fact that CHH andthe Councils' respective obligations are "entirely different" does not mean theresulting damage cannot be the "same damage".125[209] The position can be tested by Glazebrook J's example of the primary plaintiffchoosing to sue the respective parties in a different way. In this case, imagine if the125 Hotchin v New Zealand Guardian Trust Company Ltd [2016] NZSC 24, [2016] 1 NZLR 906 at[193].Ministry had sued the Councils and not CHH for the cost to repairing and replacingstructural elements of the School Buildings damaged by moisture ingress behind thecladding. That claim would have been based on the Council's alleged failure toproperly carry out its own functions in relation to building works.126 It would be unjustif, at trial, the Councils could demonstrate that not only did they fail in their obligationsowed to the building owner, but a defective product also contributed, perhapssignificantly, to the weathertightness issues, but they could not seek contribution fromthe product manufacturer.[210] I accept Mr Weston's submission that there may be weathertightness issues inrelation to the school buildings that have nothing to do with the cladding or itsinstallation. He cited the examples of defective windows and the like. He submitsthat CHH, as a product manufacturer, can never be liable for that damage and thereforecan never seek contribution in relation to it from the Councils. While that may be so,as the majority made clear in Hotchin, it does not matter that the liability of thedefendant and the third party may not be co-extensive; as the Chief Justice explains,there may be overlapping liability in respect of part only of the same damage.127 Insuch cases, it is only the overlap in respect of which contribution can be claimed.[211] So, for example, if the failure of any one building to comply with the BuildingCode was due to CHH's defective product in one area of the building, but also onedefective window installation in a quite separate area, it might be said there was nooverlap, and therefore no basis for the party liable for the costs to repair an area ofdefective cladding to seek contribution from the window installer (who will only beliable for cost to repair the window). However, in cases such as this, the determinationof the precise extent and cause of the school buildings' weathertightness issues will becomplex and intensely fact driven. I do not think it can be said on a strike outapplication that it is untenable as a matter of principle that the Councils (or any otherbuilding professionals involved in the building works) cannot have also contributed tothe weathertightness issues and consequent structural damage and thus the costs torepair.126 The Prendos report and Mr Alvey's evidence of his firm's findings from a survey of more than 70buildings provide some basis to suggest that such a direct claim would not have beeninconceivable.127 At [142].[212] I accept the position is conceptually more difficult where the damage or harmalleged by the Ministry is limited to the costs of repairing and replacing the claddingsheets themselves.128 Mr Miles submits the position should be no different, as part ofCHH's defence to such claims is that damage has been caused by defective installationof the cladding sheets.129 However, to seek contribution, it is to be assumed CHH isliable, i.e. its product is inherently faulty. If that is the case, then irrespective of howthe product had been installed, the damage (i.e. the cost to repair and replace thecladding) will still have been suffered by the Ministry. In that way, the damage causedby the faulty product might be said to be independent of or separate from any damagecaused by faulty installation. Or alternatively, even if it could be said to be the "samedamage", CHH might be seen as the primary wrongdoer and the installer (and in thiscase, the Councils) the secondary wrongdoer(s). On that basis, a claim for contributionmight not be available (as discussed by William Young J in Hotchin),130 or it wouldnot be "just and equitable" for CHH to be able to pass off any of its own liability tothe secondary wrongdoer (the approach preferred by Glazebrook J and acknowledgedby William Young J).131 And as noted, at least in relation to the latter point,Glazebrook J observed that such issues may be difficult to deal with on a strike outapplication.132[213] Further as recorded in the Strike Out Judgment, an "essential" part of theMinistry's claim is that harm or damage suffered by the Ministry extends toremediating structural damage to the school buildings, and applies to "most" buildingsin the claim. Further, Schedule 4 records in relation to a number of buildings thatwhether such structural damage exists is "not known". For those buildings where it isrecorded there is no structural damage, I do not understand that to be an acceptanceby the Ministry that there may not be structural damage; rather only that none has yetmanifested. I accordingly consider it premature to strike out CHH's claim forcontribution in respect of buildings for which structural damage is either listed as "No"or "Not known" in Schedule 4 to the Ministry's claim.128 In other words, it is not suggested the defective cladding has caused any consequential structuraldamage to any other aspects of the building.129 As noted earlier, it was not suggested by the Councils on this application that if there was defectiveinstallation, they could be liable in relation to that.130 At [224] to [228].131 At [75] and [227] respectively.132 At [72].Conclusions and orders[214] For the reasons set out in this judgment, I conclude that:(a) The longstop provisions in the 1991 and 2004 Building Acts apply tocontribution claims.(b) While CHH's delay in service of the Third Party Notices was inordinateand inexcusable, the Councils have not suffered serious prejudice suchas to warrant the Third Party Notices being set aside or struck out.(c) CHH's claims in respect of those buildings colour-coded blue in theschedule produced by the Councils are so clearly time-barred that theyought to be struck out. The remaining claims are not so clearly time-barred for the purposes of striking out.(d) The parties are to engage on a potential process for resolving residualuncertainty in respect of the identification of CCCs for each building inCHH's claim in advance of trial, particularly in respect of thosebuildings colour-coded yellow and orange in the schedule produced bythe Councils.(e) CHH's current pleading is defective in relation to particulars. However,it is not appropriate to strike out the pleading at this stage. Rather CHHis to provide further particulars without further delay. As discussed at[172] above, the parties are to engage and if required, the Court willrule on the precise form of the orders for further and better particulars.The need for CHH to particularise its claim without further delay willrequire CHH to inspect buildings at a considerably faster rate than ithas to date.(f) It is arguable the damage allegedly suffered by the Ministry and thedamage pleaded in CHH's claims against the Councils is the "samedamage" for the purposes of s 17 of the LRA.(g) The Main Proceedings and the Contribution Proceedings are tocontinue to be case managed together. It is premature to considerconsolidation and that may not be necessary in any event, given thefindings made in this judgment.[215] As a consequence, the following orders are made:(a) CHH's claims in relation to buildings colour-coded blue in the scheduleproduced by the Councils at the hearing are struck out. The Councils'application to set aside or strike out the Third Party Notices and/or theContribution Proceedings is otherwise dismissed.(b) CHH's application for an extension of time for service of the ThirdParty Notices is granted.(c) The Councils and CHH, and to the extent necessary (given the need forinspections), the Ministry, are to confer and seek to agree the furtherparticulars to be provided by CHH, the timing of the provision offurther particulars in relation to the buildings CHH has alreadyinspected and the timing and process for the provision of particulars inrespect of the remaining buildings. A joint memorandum, or failingagreement, separate memoranda as to these matters, is to be filed andserved within 20 working days of the date of this judgment. Absentagreement, the Court will determine the form of the orders forparticulars, after a short conference or hearing with the parties, or onthe papers if all parties agree that is appropriate.(d) CHH's application for an order that the Main Proceedings and theContribution Proceedings are consolidated is dismissed.Costs[216] Costs on the applications ought to be determined now. Absent agreement oncosts:(a) The Councils are to file and serve a memorandum as to costs within 20working days of the date of this judgment;(b) CHH is to file and serve a memorandum in response within a furtherfive working days;(c) The Ministry may file a memorandum on costs within a further fiveworking days;(d) No memorandum is to exceed seven pages in length;(e) Costs will thereafter be determined on the papers.____________________Fitzgerald JSolicitors: Meredith Connell, Auckland (K Francis, B Thompson)LeeSalmonLong, AucklandSimpson Grierson, Auckland