MINISTER OF EDUCATION v H CONSTRUCTION NORTH ISLAND LIMITED [2017] NZHC 3228

MINISTER OF EDUCATION v H CONSTRUCTION NORTH ISLAND LIMITED [2017] NZHC 3228 [19December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2013-404-1504[2017] NZHC 3228IN THE MATTER OF BOTANY DOWNS SECONDARYSCHOOLBETWEEN MINISTER OF EDUCATIONFirst PlaintiffSECRETARY FOR EDUCATIONSecond PlaintiffBOARD OF TRUSTEES OF THEBOTANY DOWNS SECONDARYSCHOOLThird PlaintiffAND H CONSTRUCTION NORTH ISLANDLIMITED (FORMERLY KNOWN ASHAWKINS CONSTRUCTION NORTHISLAND LIMITED)DefendantHearing: On the papersCounsel: M Davies and J S McTavish-Butler for the PlaintiffsA Skelton and B Cash for the DefendantJudgment: 19 December 2017JUDGMENT OF WHATA JThis judgment was delivered by me on 19 December 2017 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, AucklandKensington Swan, Auckland[1] This judgment concerns two recent applications1 by the defendant to:(a) adjourn the trial set down for a four week fixture starting 12 February2018; and(b) review the decision of Associate Judge Bell as to particulars.[2] This proceeding was commenced in 2013. After lengthy stay, the first trial datewas fixed for 1 May 2017 on 31 August 2016. The second trial date was set down on11 October 2016 to commence on 12 February 2018, with a close of pleadings date of31 October 2017. The defendants are due to exchange their evidence today. An urgentjudgment is needed with, regrettably, corresponding prolixity.2Background[3] I adopt the background of Associate Judge Bell from his decision of 25 October2017, supplemented by the evidence filed by the parties in relation to the adjournmentapplication. A complete chronology, from the filing of the statement of claim, isattached as Appendix A.[4] The plaintiffs own and manage Botany Downs Secondary College (theSchool). The defendant, previously called Hawkins Construction Ltd and HawkinsConstruction North Island Limited, is a construction company.[5] Under a build-only contract, in 2003-2004 the defendant built a gym andperforming arts block, administration block, library, and blocks referred to as Whanau1, Whanau 2 and Whanau 3. That was Stage 1. For that work the Ministry ofEducation engaged an architect. Stage 2, carried out in 2005-2006, involved theconstruction of buildings Whanau 4, 5 and 6. The defendant engaged the architect1 The application to review was filed on 31 October 2017 but deferred pending exchange ofevidence by the plaintiff. The application for adjournment was filed on 28 November 2017, withthe plaintiff filing its notice of opposition on 6 December 2017. Supporting affidavits were filedby 8 December 2017. Submissions were exchanged on 11 and 13 December 2017.2 Given the lateness of the applications, there was no fixture time to hear the applications, and Ihave resolved the applications on the papers. There have however been a number of conferenceson the issues raised in the applications.who had worked for the Ministry for Stage 1. Stage 3 involved the building of thelibrary extension in 2008.[6] The plaintiffs sue the defendant in negligence under three causes of action, onefor each stage. They say that defects in the buildings are attributable to breaches ofduty of care by the defendant, that those defects in the school buildings have causeddamage. The cost of remedial works claimed in the latest statement of claim is$18,270,886 plus GST. There is also a claim for additional costs for the disruptioncaused by carrying out the remedial works. The evidence now filed by the plaintiffssuggests that the total loss is closer to $25,000,000. The plaintiffs have not carried outany remedial work yet. The defendant denies any duty of care, breaches of any duty,liability generally and, by way of affirmative defences, pleads the 10-year limitationunder s 91 of the Building Act 1991, s 393 of the Building Act 2004, and s 4 of theLimitation Act 1950, contributory negligence, failure to mitigate and betterment. Byway of counterclaim and set-off, it also seeks contractual indemnity.[7] The proceeding started in March 2013. The plaintiffs filed an amendedstatement of claim on 26 September 2013 but that aside, little happened in court. Forthe first two years, the defendant did not have legal representation. Directions weregiven to allow the parties to explore settlement.[8] In March 2015, the plaintiffs filed a second amended statement of claim. Thedefendant instructed lawyers who filed a statement of defence on 15 May 2015. Theplaintiffs filed their affidavit of documents in December 2015 and the defendant inApril 2016. In August 2016, Associate Judge Bell gave trial directions for a hearingfor four weeks beginning 1 May 2017. The close of pleadings date was 2 December2016.[9] At the parties' request, the fixture was vacated to give them the opportunity totake part in mediation. The mediation was unsuccessful. On 3 November 2016Fogarty J gave amended timetable directions, leading to a hearing for four weeksbeginning 12 February 2018. By consent, he made amended directions on 3 February2017.[10] Under these directions, the plaintiffs were to file and serve an amendedstatement of claim by 8 February 2017, the defendant a statement of defence by8 March, and the plaintiffs any reply by 15 March. The close of pleadings date was31 October 2017. The plaintiffs were to serve their evidence by 3 November 2017 andthe defendant its evidence by 15 December 2017. There were related directionstowards the hearing to begin on 12 February 2018. Neither side signalled any needfor interlocutory applications.[11] The plaintiffs filed a third amended statement of claim on 8 February 2017.The defendant filed a statement of defence on 25 August 2017. Amongst other things,the statement of defence said that insufficient particulars of defects had been given,but the defendant did not apply for further particulars.[12] In September 2017, the defendant instructed new lawyers, Kensington Swan.In a telephone conference on 21 September 2017, Associate Judge Bell directed a face-to-face conference on 29 September. On 27 September 2017, the defendant's newlawyers wrote to the plaintiffs' lawyers, Meredith Connell, requesting particulars ofthe third amended statement of claim. On 29 September 2017 Associate Judge Belldirected the plaintiffs to file and serve a new statement of claim by 6 October 2017,the defendant to file and serve a new statement of defence by 13 October 2017, andany reply by the plaintiffs by 20 October. Associate Judge Bell also made directionsfor a conference on 19 October 2017 to deal with any outstanding pleadings questions.He also gave amended timetabling directions through to trial, which maintained thefixture for 12 February 2018. Finally, he encouraged information-sharing and directedthe parties to visit the school with experts.[13] The plaintiffs filed a fourth amended statement of claim on 6 October 2017,but the defendant says one schedule was served late. The defendant served a statementof defence on 16 October 2017. The parties, their lawyers and experts visited theschool for four hours on 12 October 2017.[14] In the telephone conference on 21 September 2017, counsel for the defendantwas not able to name any experts instructed for the defendant. By the time of the visiton 12 October 2017, it had two experts in attendance.[15] In his 8th Case Management Conference Minute of 25 October 2017, AssociateJudge Bell addressed the defendant's request for further particulars. In doing so, heobserved it had not sought an adjournment of the 12 February 2018 fixture, and dealtwith the request for a more explicit pleading on the basis the case would go ahead onthat date. He advised the defendant to file and serve a formal application and seek aprompt hearing if it wished to seek an adjournment. Overall, he was of the view thedefendant had made "its pitch too late", and that it was not at any significantdisadvantage without further particulars being ordered.3[16] The only further development of note is on 5 November 2017, ThomasWutzler, who was engaged by the defendant on 29 September 2017 to act as an expertwitness, withdrew on the basis of a possible conflict of interest.Application for adjournment[17] With the benefit of submissions, the main grounds for the adjournmentapplication are:4(a) There was no undue delay in making the application.(b) The plaintiffs significantly expanded the scope and quantum of theirclaim only three weeks prior to the close of pleadings date, in the FourthAmended Statement of Claim.(c) The plaintiffs' evidence includes significant new allegations and aconsiderable expansion in the scope of the defects and damage allegedin loss claims.(d) The new allegations and expansion of scope means there isconsiderable additional expert evidence required and the need forfurther extensive inspections (including destructive testing).3 At [34]-[35].4 An issue of late discovery was also raised by the defendant, but it is not clear how matters raisedin discovery affect the defendant, beyond in the manner I address below.(e) The plaintiffs have frustrated the defendant's access to the School. Theplaintiffs have allowed their experts access without informing orinviting the defendant to participate, contrary to a commitment madeby the plaintiffs.(f) The plaintiffs challenged the defendant's lead expert, Mr Wutzler, onthe basis he had a conflict of interest, which ultimately forced him towithdraw in early November.(g) The plaintiffs will not be prejudiced by delay in the trial, and the trialcould be moved to 16 July 2018 (when another proceeding between theparties is to be heard). Further, the plaintiffs' evidence discloses thatthe plaintiffs have no immediate or even long-term plans to remediatethe school.Legal principles[18] The parties are largely agreed as to the applicable legal principles. Rule 10.2of the High Court Rules 2016 provides for adjournment in the interests of justice, asfollows:10.2 Adjournment of trialThe court may, before or at the trial, if it is in the interests of justice,postpone or adjourn the trial for any time, to any place, and upon anyterms it thinks just.[19] As stated in McGechan on Procedure, in assessing whether the interests ofjustice favour postponing or adjourning the trial, the court must consider and weigh,not only the interests of the immediate parties, but also those of parties waiting in thequeue for hearing and the public interest in the efficient use of court resources.5Significant weight may also be afforded to one party's wish that a trial not beadjourned.6 Whether the parties and those representing them have done everything5 McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR10.2.02].6 Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945.reasonably practicable to avoid having to see an adjournment is another relevantconsideration.7[20] I turn to address each of the grounds for the adjournment.(a) No delay in bringing application[21] The central thrust of the defendant's submission is it reserved its position on21 September 2017 as to the requirement for adjournment, and raised the issue of apotential adjournment at numerous subsequent conferences. It says the decision toseek adjournment followed several events (including the loss of its lead expert, andfollowing the exchange of evidence which revealed substantial changes in scope ofthe proceedings) which then made it necessary to seek the adjournment.Assessment[22] I consider the defendant should have "bitten the bullet" and sought anadjournment when it became clear it was not going to be ready to exchange evidencein accordance with the established timetable. Based on the evidence before me, thedefence case was in a very poor state of unreadiness when new counsel was appointed,which then escalated to parlous when its purportedly lead expert, Mr Wutzler,withdrew. It should have been obvious to counsel at this point that an adjournmentmay have been necessary.[23] Balanced against this, the relatively last minute rash of steps required to getthese proceedings ready for trial, against a backdrop of a lengthy period of inactivity,is a mitigating factor. The challenge to Mr Wutzler, while not without merit, was afactor the defendant could not be expected in the circumstances to have anticipated. Ireturn to this issue below at [45].[24] Overall, in my view, the application was late, though partly explicable byevents beyond the control of the defendant.7 ANZ Banking Group (NZ) Ltd v Couchman (1992) 6 PRNZ 34.(b) Expanded scope, nature of claim and quantum(c) New allegations and evidence(d) New defects not apparent from the statement of claim or without prejudicematerial[25] These three grounds can be dealt with together.[26] The defendant submits the Fourth Amended Statement of Claim served on6 October 2017 substantially expanded the scope of the claim, increasing the quantumof the claim from $17,200,000 (in the Third Amended Statement of Claim) to$20,000,000. It also notes the plaintiffs' evidence has substantially expanded theallegations and the scope of the defects, with the result that the claim now sits atapproximately $25,000,000. The significance of this issue is explained by TrinaLincoln, an employee of the defendant. She notes:41 one of the issues in relation to this claim and its resolution has beenthe plaintiffs' periodic revisions to their claim to feature moreallegations of defective work, and increases to their quantum bymultiples of what was initially claimed. This has occurred yet againwhen the plaintiffs have served their evidence, with new and differentallegations and yet further increases in the scope of work and thequantum from that claimed in the latest statement of claim (and fromthe without-prejudice material previously provided). This point isaddressed in more detail in the other affidavits being filed in supportof this application, which I have reviewed. At the same time, HConstruction has not yet been able to clearly understand from theclaim and other material provided the true nature and extent of theissues claimed against it, the actual damage it has allegedly caused,whether the alleged defects are a design and construction defect orconstruction only, and the cost of dealing with each defect. It alsotook the plaintiffs several years to accept that the Stage 1 construction(which constitutes most of the school) was a construction-onlycontract under the guidance of the plaintiffs' architect, rather thanbeing a design and build contract.[27] More specifically, the defendant claims four new allegations emerge from theevidence, namely failing to:(a) request information from the architect;(b) provide a maintenance manual (or maintenance programme);(c) warn the plaintiffs about design issues; and(d) follow specific architect's drawings and instructions.[28] In addition, Mr Bray, an expert retained by the defendant, identifies severalnew defect claims. He states:10 The Crown's expert evidence includes several new defects whichwere not apparent from the statement of claim or the without prejudicematerials we reviewed. These include:(a) At paragraph 8.20 of Mr Goodwin's brief the description inrelation to the inadequate ground clearance (defect 5) appearsto now include the lack of adequate distance between thetimber framing and the adjacent ground which is differentfrom the pleaded defect in the Fourth Amended Statement ofClaim.(b) At paragraph 8.24 of Mr Goodwin's brief there is another newdescription of the alleged inadequate clearance issue inrelation to the alleged lack of offset to the bottom plate for allbuildings. Again, this has not been described previouslywithin the defects in schedule 1 of the Fourth AmendedStatement of Claim (although some without prejudicematerial indicated it might be raised for a few (but not all) ofthe buildings).(c) Paragraphs 8.27 to 8.30 of Mr Goodwin['s brief] also refer tothe concrete nib in an area on whanau 1 being formed withtimber, that this will decay and that photos show that waterhas entered and severely decayed the timber. This is anentirely new issue (although it appears to be a one off).(d) At paragraph 7.6 of the brief of evidence of Mr O'Sullivan thedescription of the Stage 2 nib defect appears to have changedto now include a description of "The stage 2 nibs also need tobe replaced as they are not high enough". This is a descriptionof the defect I have not previously seen.(e) At paragraph 8.2(c) of Mr O'Sullivan's brief there appears tobe a description of the failure to achieve the required step inthe roof. I have not previously noted any reference to aninadequate step within, for example, the Fourth AmendedStatement of Claim in relation to defect 1.11 I consider the above matters to be clearly new defects or sub-defects(or as the plaintiffs' witnesses characterise them "causes") notidentified in the materials previously provided.12 Further, as I have noted above, given the quite vague description ofthe defects in the Fourth Amended Statement of Claim it was simplyunclear to me as to the exact nature and extent of the defects. By wayof example in relation to the roofs:(a) Paragraphs 9.26 to 9.27 of the brief of Mr Rawlinsonidentifies two separates location on the gym/PAC buildingand the library at Botany Downs where roof sheets areallegedly double layered and corrosion has occurred. Therewas no reference to this within the Fourth AmendedStatement of Claim. There was some material (e.g. withoutprejudice photographs of one of these two locations but notthe other) that indicated this might be an issue but it was notclear to me exactly what was alleged. This could be seen as anew defect or an expansion or clarification of the roof edgedefect or cause (part of defect 1) but either which way it wasan issue where the exact allegation and its nature and extentwas not previously apparent from the materials provided bythe Crown.(b) Paragraphs 9.28 – 9.33 of the brief of Mr Rawlinson raisesissues about the roof underlay being short of the edge and theuse of expanding foam instead of specified Ecofoam and saysthis is contrary to ASC detail 44 drawing 91 and detail 79drawing 652. Again, this is not set out in the Fourth AmendedStatement of Claim – it simply says (under defect 1) poorlyformed roof edges. The way this defect was pleaded in theSecond Amended Statement of Claim which schedule 1 to theFourth Amended Statement of Claim refers back to (poor turndown or lack of turn down at roof edges) gave no indicationthat the alleged roof edge defect included issues such as these.Again, there was some material (provided on a withoutprejudice basis, such as photos) which potentially showed thisissue but it was an issue where the exact allegation and itsnature and extent was not clear and it has only now beenclarified in the evidence.[29] Mr O'Sullivan, an expert for the plaintiff,8 however responds to Mr Bray'sclaims. His key evidence is as follows:12 While I cannot speak to what was clear or not to Mr Bray, Hawkinshad Schedule 1 to the fourth amended statement of claim (4ASOC)and the schedules to the prior statements of claim well beforereceiving the evidence. The schedules to the claim clearly define thedefects, the matters behind the defects (being the cause/particulars),the nature of the damage and the locations, any building code issuesand general directions as to technical literature and a description ofthe remedial works. The 4ASOC includes Schedule 2 which providesdetailed location information for each defect.8 Mr Sullivan has considerable experience in litigation of the present kind, having appeared inseveral high profile leaky building proceedings including ones involving the Victopia Apartmentsand The Nautilus.13 The form of Schedule 1 is routinely used in these types of claims.Based on my experience Schedule 1 to the 4ASOC provides acomparatively detailed explanation of the defects. Schedule 1 is notmeant to be an absolute statement of all matters relating to the defects;that level of detail comes with the filing of the evidence. Again, inmy experience that is the usual approach.14 In paragraphs 9 to 14 of his affidavit, Mr Bray suggests the plaintiffs'expert evidence differs in several significant ways from the statementsof claim and the without prejudice material previously provided andthat there are several new defects.15 There are no "new defects" from the 4ASOC described in theplaintiffs' briefs of evidence. Schedule 1 to the 4ASOC lists sevendefects. The plaintiffs' expert evidence is broken up by headings foreach of those seven defects. The briefs of evidence include detailedinformation on the underlying nature of those defects or in simpleterms, what goes to make up the defect.16 Mr Bray has given examples of what he says the "new defects" are atparagraphs 10(a) to 10(e) of his affidavit. I respond to these commentsbelow:(a) Paragraph 10(a) – The lack of adequate distance between thetimber framing and ground described in Mr Goodwin's briefis not a new defect. It is part of Defect 5 – the groundclearance issues with the cladding. The inadequate clearanceto cladding encompasses the industry requirements and theJames Hardie Technical details which refer to groundclearance for the framing. It is the same inadequate groundclearance issue and that issue is well known.(b) Paragraph 10(b) – as with my comments above, the lack ofoffset to the bottom plate is not a new defect. It is simply partof the clearance issues with the cladding (Defect 5). Therequirement for an offset to the bottom plate forms part of theJames Hardie technical requirements.(c) Paragraph 10(c) – the formation of the concrete nib withtimber is part of Defect 5. Although it is not explicitly notedin the particulars it is de [minimis] and makes no differenceto the nature of the work to rectify Defect 5, as new concretenibs have to be constructed in any event.(d) Paragraph 10(d) – the height of nibs is part of Defect 5.Failure to comply with requirements of the James Hardietechnical literature and thus avoid capillary action is astandard requirement for all cladding types and that includesframing. Again, this is self evident within the constructionindustry.(e) Paragprah 10(e) – the failure to achieve the required stepdown comes within Defect 2 – poorly formed internal guttersand outlets. It is part of the particular described as "incorrectformation of the gutter membrane at junctions and at outlets".And further:20 Dealing with the specific examples given by Mr Bray:(a) Paragraph 12(a) – Mr Bray refers to paragraphs 9.26 and 9.27of Mr Rawlinson's brief of evidence. He says the referencesin those paragraphs to double layered roof sheets is notreferred to in the 4ASOC. The double layering of roof sheetsis covered by the particular to Defect 1 'poorly formed roofedges'. As noted by Mr Bray, he has seen photos of twolocations of the double layering and corrosion.(b) Paragraph 12(b) – Mr Bray refers to paragraphs 9.28 and 9.33of Mr Rawlinson's brief of evidence. He says that thereferences in those paragraphs to roof underlay being short isnot referred to in the 4ASOC. Again, the underlay being shortis also covered by the particular to Defect 1 'poorly formedroof edges'. As above, Mr Bray accepts that he [h]as seenphotos of this issue. Again, it is important to distinguishbetween a defect and its cause.[30] In my view:(a) The allegedly new allegations (a) and (b), noted at [27], form only asmall part the plaintiffs' claim and appear insignificant.(b) Items (c) (dealing with a duty to warn) and (d) (dealing with failure tofollow architectural design) may require leave to amend. But I foreseethe prejudice attaching to item (c) to be small – the facts andcorresponding evidence attached to such an allegation are relativelyconfined. In relation to item (d), the schedule sets out in reasonablyclear detail the types of defects claimed, many of which raise bynecessary implication issues of flawed design or failure to adhere todesign specifications. In the result, these claims are readily capable ofbeing carved out by the trial judge if that proves necessary.(c) Mr Sullivan appears generally correct – the schedules to the FourthAmended Statement of Claim adequately define the defects, andmatters raised by Mr Bray appear to be of detail, to be expected inevidence rather than pleading. I however accept that one of theexamples noted by Mr Bray at [12](b) of his evidence (dealing with thealleged inconsistency with design drawings) appears to raise a partiallynew issue not expressly covered by Schedule 1. But, withoutforeclosing a successful challenge at trial, the failure to comply withproduct specifications is clearly pleaded and the related allegation ofinconsistency with design drawings is implicit in such a pleading.[31] Overall, I am not satisfied the defendant has established it is unduly prejudicedby the allegedly expanded scope of the pleadings and evidence. The plaintiffs pleadedin a reasonably clear and comprehensive way the alleged negligence and the natureand type of defects allegedly arising from that negligence. To the extent that there maybe material new allegations or new defects, I am satisfied the trial judge will have littleproblem excluding them from consideration if that proves necessary in the interests ofjustice.(e) New areas or aspects of alleged damage, and undiscovered evidence(f) Expansion and changes to scope of alleged remedial work(g) Increase in quantum(h) Access[32] I will also deal with these grounds together.[33] Mr Bray sets out the genesis of the defendant's complaint as follows:13 I otherwise note that the Crown's allegations as regards the defectsand their extent have changed in their expert evidence when comparedwith what was set out in the Fourth Amended Statement of Claim.Attached are two schedules describing the changes in the location andextent of the defects in the Crown's expert evidence as compared withwhat was shown in the Fourth Amended Statement of Claim. Someof these are reductions in the locations/extent of the alleged defect.However, concerningly, new areas are now also alleged.14 There also appear to be new areas or aspects of the alleged damage.For example, at paragraph 7.27 of his brief Mr Goodwin describes thata total of 25 new timber samples were taken during investigations (20in September 2016 and 5 [in] October 2017). In addition, at paragraph7.29 Mr Goodwin makes reference to 13 new building underlaysamples being analysed and a further 2 samples of particleboard andcarpet being analysed by Biodet Services Ltd. There were samplesalso taken during the same investigations in September/October 2016and October/November 2017. While reports of Biodet and Beagle onsamples taken by ACL formed part of the without prejudice ACLreports previously provided to Hawkins, Hawkins had not beenprovided with reports on the samples taken by Prendos.15 I could understand, based on the testing and analysis results of theACL samples, why Hawkins may have decided that it did not need totake any steps to take and test any samples at Botany Downs.However, now a total of 40 additional/new timber and other materialsamples have been taken and analysed and those samples and theanalysis is now relied on in the Crown's evidence and has somesignificance placed on it (e.g. see for example paragraph 8.41 ofMr Goodwin's brief which refers to the new test results to support aclaim of water ingress and damage in relation to defect 5 or paragraphs5.15 to 5.20 of Mr Wakeling's evidence as regards the allegedsignificance of the new results).16 None of the above was specifically detailed in the Fourth AmendedStatement of Claim as regards the alleged damage or provided on awithout prejudice basis, which is what I would normally expect. Inparticular, the October 2016 samples (which make up 31 of the 40additional samples) had been analysed and a report made available tothe Crown by October 2016 and could have been provided in someform well over a year ago to help inform Hawkins of the nature of theclaim.17 In addition, there are numerous references by the Crown's expertwitnesses to photographs which appears to have been takenthroughout 2016 and 2017 and which had not previously beenprovided (either on an open or without prejudice basis). If the othermaterials provided (e.g. the statement of claim and/or other withoutprejudice material) had clearly laid out the nature of the defects andtheir [extent] and the alleged damage, this omission would be lesssignificant. However, when combined with the lack of clarity in othermaterials, it is yet another factor that contributes to us being taken bysurprise as regards the specifics of the Crown's case.[34] Ms Lincoln also expands:52 As canvassed above, the plaintiffs' pleadings substantially changedthroughout the course of the proceedings. The amendments havemade it difficult for H Construction to understand the allegationsagainst it and respond accordingly.53 This issue was compounded as a result of without-prejudiceexchanges between the parties. H Construction was provided withvarious reports of Alexander & Co Ltd (ACL) on a without-prejudicebasis. I understand that ACL had been engaged as the experts for theplaintiffs but was later replaced by Prendos. Ostensibly the purposeof providing these reports was to aid H Construction in understandingwhat the plaintiffs alleged to be defective and assist the parties toestablish common ground and reach a sensible solution.54 Having had the benefit of reviewing the plaintiffs' evidence it is nowapparent that the plaintiffs' pleadings and indications made in thewithout-prejudice reports did not provide H Construction withadequate information to understand the claims made against it,appropriately respond in defences made to the claims and prepareevidence to test the claims.55 By way of example, the ACL reports included reports analysingtimber and other samples taken at the school by ACL. Those reportshave now been discovered on an open basis and are relied on in theplaintiffs' evidence. Those reports did not indicate any significantdamage to the school. Given this, H Construction did not believe itwas necessary to undertake any testing of its own at the school.Essentially, nothing found in the ACL samples and the analysis ofthem was of concern.56 However, as explained above, unbeknownst to H Construction,additional testing was being done by the plaintiffs' new experts. HConstruction was not given an opportunity to attend and not given theanalysis of the new samples taken in 2016. This evidence is nowrelied on by the plaintiffs' witnesses as showing damage from allegeddefects (again, the details of this is addressed in the affidavits of othersfiled in support of this application). Had H Construction beeninvolved in these inspections and/or had the claim either been clearabout the damage alleged and/or the new analysis shared with HConstruction, different decisions would likely then have been madeabout the conduct of H Construction's defence, including whether toundertake further inspections of the school and undertake its owntesting.57 Overall, the plaintiffs' position conveyed both by way of the claimsand the supplementary material provided on a without-prejudice basishas not given H Construction a true or clear picture of the plaintiffs'case. The plaintiffs' evidence has then materially changed thecharacter of the plaintiffs' claim again (on top of the substantialchanges that the claim went through throughout the proceedings),with the evidence differing materially from the fourth amendedstatement of claim filed only a month before the evidence was served.[35] There appear to be three main problems arising from this for the defendant:(a) there was inadequate information to understand the claims; and(b) it did not understand that it needed to undertake its own testing giventhe limited information provided by the plaintiffs; and(c) the plaintiffs were not transparent about their testing.[36] The prejudice to the defendant is noted by Mr Bray in the following terms:19 The cost or loss claimed by the Crown has then also increasedsignificantly from what was in the Third or Fourth AmendedStatement of Claim. The remedial work cost estimate is now$22,208,549.48 plus GST (refer, for example, to paragraph 7.1 of thebrief of evidence of Heidi Van Eeden) or an increase of $3,937,669over and above the $18,270,880 claimed in the Fourth AmendedStatement of Claim. While I am not a quantity surveyor, this increaseseems to reflect both changes to the scope and changes in quantitiesand rates.20 The cost of additional or temporary accommodation has alsoincreased. Ms Eeden (paragraphs 8.14 to 8.18) outlines the cost ofhiring or buying temporary buildings and settles on a claim for buyingand reselling temporary buildings at a cost of $2,742,726. In theFourth Amended Statement of Claim, the cost claimed was$1,697,595.92. This is an increase in this aspect of the claim of$1,045,131.21 Overall, the claim, which was almost $20 million in the FourthAmended Statement of Claim, is now almost $25 million – an increaseof approximately 25%.22 The cumulative impact of all of these matters is that Hawkins and itsexpert are having to now respond in quite a short time period to aclaim that differs in material respects from that foreshowed in theclaims or the without prejudice material previously provided by theCrown. In short, the claim is different in a number of respects to whatwas expected or foreshadowed and this has an impact on the work thatexperts for Hawkins would wish to do to meet the claim.23 In particular, based on the further evidence provided and referencedwithin the Briefs of Evidence of Hawkins' experts consider itnecessary to investigate the newly described defects, the extent ofdefects and new examples of damage to confirm their existence orotherwise.24 This will require further site visits (encompassing at least several dayson site) including visual investigations, invasive investigations (i.e.destructive testing), testing and sample analysis, including:(a) Investigations of the pop-up roofs (of which new evidence hasbeen provided within the Crown's experts briefs of evidence);(b) New areas of fibre cement newly identified within the briefsof evidence of both Mr Goodwin and Mr Rawlinson;(c) Other areas of the school where new evidence of allegeddamage has been claimed.25 Also, we now need to do further analysis of additional trade literature,product literature and design documentation to verify new concernsin relation to building elements and alleged departures from thedesign.[37] Mr O'Sullivan responds for the plaintiffs, noting in particular:21 At paragraph 13, Mr Bray refers to two schedules which outline whathe says are changes to the locations of certain defects. It is correct thatsome locations for Defects 1 and 6 have been clarified in greater detailin the evidence but the Defects have not changed. For Defect 1, thelocations of the thermal movement aspect have in fact been reduced.Locations for raking edges have been included. Again, the rakingedges were always part of Defect 1. For Defect 6 the affected claddingareas have been updated to reflect the most up to date findings. Asbefore, this is by way of additional clarification for all involved in thetrial and is entirely usual in my experience.22 At paragraph 14 of his affidavit Mr Bray talks about testing fromsamples taken in 2016 and 2017. The timber samples were requestedto demonstrate the natural progression of damage with H3.1 timber.23 Mr Bray then goes on to comment in paragraph 15 that based on theinitial testing of the ACL samples, he could understand why Hawkinsdid not take any steps to test new samples. I cannot comment on whyHawkins did not take any steps to test new samples. I cannot commenton why Hawkins did or did not decide to take any actions. I simplycomment that it is a matter of common knowledge to experts thatdamage from water ingress increases over time. In keeping with this,and predictably, as time has progressed more damage has becomeevident. That is common and [in] line with normal expectations forH3.1 timber.24 Mr Bray talks at paragraph 16 about the testing not being detailed inSchedule 1 of the 4ASOC. Schedule 1 describes the damage for eachdefect. Testing results are not detailed in Schedule 1 because theyform part of the evidence rather than part of the pleadings.[38] And further:26 At paragraphs 19-21, Mr Bray comments on the increase to thequantum of the claim. I note that the 4ASOC expresses the Costs ofRemedial Work as being "currently estimated to be not less than".Again, it is entirely standard for final updates on costings to beprovided in the evidence.[39] Mr O'Sullivan addresses a further concern raised by Mr Bray in relation to theavailability of a bio-deterioration expert. He notes one based in the Waikato isavailable.[40] Tania Halpin, project manager for the Ministry of Education, also providesevidence as to the background and the defendant's involvement in the four or so yearssince the proceedings commenced. She notes:9 Meredith Connell regularly provided information to ensure thatHawkins was kept updated on a without prejudice basis (the Ministrydoes not in any way waive privilege by virtue of my reference to thesematters in my affidavit). This included providing information aboutthe increasing estimated remediation costs, copies of destructivetesting reports, health and safety audit results that the Ministry hadcommissioned and defect causation schedules prepared by theMinistry's experts. None of these things have been referred to inparagraphs 8 to 22 or 52 to 57 of Ms Lincoln's affidavit.[41] She also observes:(a) The increase in the estimated cost of remedial works and the provisionof temporary accommodation between the Second Amended Statementof Claim (September 2015) and the Third Amended Statement of Claim(February 2017) was $3,000,000, and was largely because of theassociated increases in professional fees, building costs and materialover that period.(b) The defendant engaged Brian Duffy as an expert in 2014. He met withthe plaintiffs' experts in December 2014 and June 2015, attended a pre-mediation experts' meeting with Prendos on 9 May 2017, and themediation on 18 May 2017. He also attended the School for a third timeon 12 October 2017 and was scheduled to attend a further destructivetesting site visit on 9 and 10 December 2017.(c) Prendos reports were provided to the defendant on a without prejudicebasis in May 2015.(d) The defendant was given ample site access. Ms Halpin produced adetailed chronology of sites visits, which I have reproduced in part inAppendix A.Assessment[42] In my view:(a) The defendant has had ample notice that the claims against it werelikely to be very substantial and would increase over time, given thefact water damage caused by unremediated defects generally increaseswith time.(b) Increases in the quantum claimed, while significant, should have beenanticipated by the defendant given the scale of the building works.(c) The defendant did not appear (based on the evidence before me) toengage in any testing of its own on the spurious basis that initial testingby the plaintiffs did not reveal significant damage. But I also note MrDuffy has been actively involved in preparation for the hearing and ithas not been suggested that he is no longer available to assist.9(d) While part of the reason for the defendant's inactivity can be explainedby the attempts at mediation, it should have taken undertaken its owntesting.(e) The defendant's representatives were wrong to assume (if they did) thatplaintiffs in a very substantial leaky building case were not going torepeat or expand testing for water damage as part of the evidencepreparation process.(f) I agree with Mr Davies that the plaintiffs were under no obligation todisclose their full testing programme to the extent that it formed part oftheir preparation of evidence. Having said that, plaintiffs who keep theircards close to their chest run the risk that applications for adjournmentmight be made when testing done in secret is produced in evidence.9 Mr Cash noted in a conference on this matter that Mr Duffy had relatively limited involvementand could not add substantively to the information supplied by Ms Lincoln. I am prepared toproceed on the basis that he cannot add to Ms Lincoln's evidence as to the process followed andthe information exchanged. Nevertheless, the defendant has had the benefit of a building expertfor some time and should have taken more active steps to ascertain the extent of its potentialliability (if any) and in any event, an expert who should be reasonably placed to assist thedefendant in preparing evidence.[43] Assessed in the round, the defendant's grounds under this heading are notstrong. It was in control of its preparation for trial. The defendant sat on its hands fortoo long. It cannot reasonably sheet responsibility for this to the plaintiffs. I ammindful, however, that the plaintiffs' "secret" testing is a relevant factor. Theproduction of this testing in 2016 may have stimulated the defendant into action, andamong other things avoided the need for the defendant to seek an adjournment now.Nevertheless, the approach taken by the plaintiffs does not raise interests of justiceconsiderations. As noted, the defendant was well able, and had the opportunity, toundertake its own testing.(i) Inconsistencies must be addressed now[44] The defendant says it is not appropriate to address the apparent inconsistenciesbetween the pleadings and the evidence at trial and that they must be considered now.However, as foreshadowed above, I am satisfied having reviewed the pleadings andthe alleged inconsistencies that the degree of difference appears, at least on its face, tobe discrete and capable of management at trial if necessary. I return to this aspectbelow at [101].(j) Removal of the lead expert[45] As noted Mr Wutzler withdrew as an expert for the defendant on 5 November2017. Mr Wutzler has provided an affidavit addressing his expertise, thecircumstances of engagement by the defendant, and his subsequent withdrawal. It isnecessary to set it out because it reveals that the decision to withdraw cannot beattributed to the defendant. On the contrary, while not unreasonable, the plaintiffsforced Mr Wutzler's hand.[46] Mr Wutzler is a very experienced building surveyor, having provided advicefor approximately 150 matters in leaky home or building proceedings. He wascontacted by the defendant on 29 September 2017 to act as an expert witness in relationto claims in respect of four schools. He identified the schools subject to litigation andconfirmed he had no conflict. He is, however, currently engaged by the Ministry inthe Carter Holt Harvey Ltd "Shadowclad" proceedings, which involves a productliability claim. On 4 October 2017, he received advice from Meredith Connell that hewas conflicted. He was not persuaded and referred them to Kensington Swan.[47] Mr Wutzler continued to act, and made site visits on 12 and 27 October 2017.He was then shown correspondence from Meredith Connell suggesting he was inpossession of confidential information. He did not think that information had anyrelevance to the present proceeding.[48] Mr Wutzler explains that there was then an application to the Court for an orderbarring the defendant from calling him. The plaintiffs claimed he was a trustedprofessional adviser to the Ministry. At this point he sought independent legal advice.Having explained his position to counsel, further information was sought fromMeredith Connell. It transpires that, while not engaged to act by the Ministry, the freshinformation showed he had been present at a meeting where the present proceedingwas discussed. In addition, further information revealed his company, Helfen Ltd, hada number of years ago reviewed documents relevant to the present proceeding. Hecould not recall the content of this material, but concluded he had to withdraw.[49] Mr Hazlehurst has since been retained, I understand, to replace Mr Wutzler. Heis also very experienced. He says he has only visited the school once. He also notesthe plaintiffs' claim is substantial, involving briefs of evidence of 190 pages in total.He then says:22 To properly complete my investigations, I need to undertake furtherextensive inspections at the school over several days, includingdestructive testing and the taking of material and wood samples forreview and analysis. There is a significant amount of informationgenerated by others working on the case, both from the plaintiffs' andthe defendant's sides. Add to that the material I and my two supportsurveyors are generating. Consequently, there is and there will be alarge body of information to manage, collate and shape into reportsand briefs of evidence, including photographic records, drawings andsketches, costs analysis and industry references. However, given Ihave only just recently been engaged and therefore been able to beginmy work only some 5 or so weeks before Hawkins' evidence is due, Icannot see how I can properly complete my investigations and preparea brief of evidence by the due date for Hawkins' evidence (Iunderstand the current deadline is 19 December). This is especiallythe case when a significant part of my on-site investigation is, due toexams, unable to proceed until 4 December 2017 or potentially evenlater.[50] And further:24 I can see how it might be possible to complete the full investigationsrequired by the trial date but I understand the experts are supposed tohave conferred and produced a report for the Court as to the points ofagreement/disagreement by 2 February 2018. That is clearly premisedon the respective experts having had an opportunity to properlyconsider each other's evidence, so they can engage meaningfully indiscussions aimed at identifying what the experts agree on and whatthey don't agree on, so as to establish the differences, or narrow thetrial's focus down to those fundamental issues of significance.Assessment[51] I accept the defendant's basic contention that losing an expert of Mr Wutzler'sexperience at such a late stage was a heavy blow to their preparation. While he wasretained only recently, an expert of his significant experience can assimilateinformation and prepare evidence quickly and efficiently, as well as assist in theidentification of key matters to be addressed in associated evidence. This isparticularly important in the context of a claim involving seven primary defects (and24 "sub-defects") across multiple buildings.[52] The plaintiffs do not accept Mr Wutzler's late withdrawal is a problem. Theyrefer to the fact:(a) he was retained in late September and after the date for caucusing;(b) he was notified of the conflict immediately; and(c) Mr Duffy, who has not given evidence in support of the present claim,has been engaged since 2014 and it has not been explained why hecannot provide lead expert evidence.[53] I nevertheless consider this to be a strong factor favouring either anadjournment of the hearing, or as a minimum an extension of time to exchangeevidence. I have come to the view that a further month to exchange evidence shouldsuffice, with a truncated period for expert caucusing. I reach this view because withan extra month, Mr Hazlehurst will then effectively be in the same position as MrWutzler in terms of timing for the evidence. I appreciate that the Christmas breakcomplicates matters. But this is a necessary consequence of the defendant's poorpreparation to date.Prejudice[54] Given where I have got to, I do not consider the proceedings should beadjourned. I am fortified in this view because the defendant's difficulties are largelyof its own making. The failure to undertake even basic testing over a four-year periodis not explained by the initial exchange of apparently innocuous test results. Theunexplained decision to appoint new counsel and very late retention of a key expertwere matters within the defendant's control. Any prejudice to the defendant causedby the haste with which it must now prepare for the hearing is therefore largely self-induced (though as noted Mr Wutzler's conflict issue was not something it couldcontrol).[55] By contrast, the plaintiffs will be substantially prejudiced by any delay. Theyhave expended considerable resource to comply with the Court's timetabling orders.This will have dictated the level and timing of deployment of scarce resources.Decisions will have been made in terms of the scale and type of evidence preparationaccordingly. In the absence of good clear reasons to adjourn, it is not fair to them toextend more time to the defendant to prepare, with the benefit of the plaintiffs'evidence. While this is not a game of rugby, the credibility of our civil justice systemlikewise depends on the even-handed enforcement of rules, in this case timetablingorders which secure procedural fairness for the parties.[56] There is also prejudice to the court, other litigants and the general public toconsider. Large scale matters of this kind consume considerable judicial and courtresources. Other litigants are affected in terms of the capacity of the courts to heartheir matters. The adjournment will have a knock-on effect: other litigation may haveto be brought on at short notice, or conversely precious time lost to the disposal ofproceedings.[57] I have considered whether I should simply adjourn to the 16 July 2018 date assuggested by the defendant. But this will cause material prejudice to the parties in thatproceeding. The parties include a different Board of Trustees and a further defendant,not party to this proceeding, who do not consent to the adjournment. They ought notto lose their fixture because of the defendant's clear failure to be ready for this trial.Finally, I am satisfied an extension of one month, including the Christmas break,should be sufficient for evidence exchange purposes.Outcome[58] The application for an adjournment is declined. However, I propose extend theperiod for exchange by the defendant to 15 January 2018. The experts are to confer nolater than ten working days later, by 29 January 2018. A joint expert report is to beproduced as soon as possible thereafter. Evidence in reply to be filed no later than 5February 2018. The defendants are to make their briefs of evidence available as theyare completed (though that this may be when other related briefs are complete). Theparties are to file memoranda as soon as possible if this timetable cannot be met.Application to review[59] The application to review the decision of Associate Judge Bell alleges thefollowing errors:(a) Associate Judge Bell erred in finding that the particulars relating tohealth and safety of the staff and students, or interference with theprovision of education, were not required because they were self-evident, a standard issue in leaky building proceedings anduncontroversial once defects and damage are established. This groundis no longer pursued.(b) Associate Judge Bell was wrong to conclude:(i) it is not disputed that Stages 2 and 3 were subject to design andbuild contracts; and(ii) it is sufficient for the plaintiffs to plead that there was a contractbut that more is not required.(c) Associate Judge Bell was wrong to refuse particulars relating to allegeddefects, damage, remediation work and loss, and in respect ofSchedules 1, 2 and 3 of the pleadings on the basis that:(i) ordering such particulars would severely disrupt the plaintiffs'preparation for trial; and(ii) the defendant's alleged delay in applying justified a refusal toorder particulars that are otherwise required, and in relying onthe decision in Astrovlanis SA v Linard.10(d) Associate Judge Bell wrongly found the defendant is not at anysignificant disadvantage if the further particulars are not ordered.The pleadings[60] Because the application for review concerns the Fourth Amended Statement ofClaim, it is necessary to the pleadings in some detail. This involves some unavoidablerepetition from the background outlined above at [3]-[16].[61] The present claim involves three stages of building work. The first state ofbuilding work involved the construction of the following blocks:(a) Gymnasium and Performing Arts Centre (Block E);(b) Whanau One (Block B);(c) Whanau Two (Block C);(d) Whanau Three (Block D);(e) Library (Block F); and(f) Administrative Building (Block A).10 Astrovlanis SA v Linard [1972] 2 QB 611 (CA).(collectively, the Stage 1 building work)[62] In or around December 2002, the plaintiffs appointed the defendant toconstruct the Stage 1 building work. A building work report confirmed the Stage 1building work contract. It confirmed, among other things:(a) the defendant had submitted control documents, including for healthand safety, programme and cost for construction of the Stage 1 buildingwork;(b) construction documents had been issued to the defendant;(c) the site had been handed over to the defendant on 6 January 2003;(d) the defendant was the main contractor;(e) the defendant was responsible for quality control;(f) the defendant confirmed that it was established on site; and(g) Maltby & Partners Ltd (the quantity surveyor for the Stage 1 work)confirmed the project had been awarded to the defendant for the sumof $14,392,155.36.[63] The Stage 1 building contract was then executed on 6 October 2003. A copyof this contract has not been retained by the plaintiffs or the defendant.[64] The defendant constructed the Stage 1 building work between about March2003 and early-mid 2004, and certificates of compliance were obtained. In December2003, the defendant issued a producer statement certifying it had carried out andcompleted the construction of the Stage 1 building work in accordance with planspecifications and the Stage 1 contract. Corresponding certificates of code compliancewere also issued.[65] Stage 2 of the building work comprised construction of the following blocks:(a) Whanau Four (Block I);(b) Whanau Five (Block H); and(c) Whanau Six (Block J).(collectively, the Stage 2 building work)[66] The Ministry on behalf of the second plaintiff accepted the defendant's tenderon the Stage 2 building work. In late 2004, the plaintiffs entered into a design andbuild contract with the defendant in respect of Stage 2 building work. The contractwas a fixed price design and build contract, based on NZS 3910:2003. It included anumber of ancillary documents to the contract. In 2005, the defendant engagedAndrews Scott Cotton Architects Ltd (ASC) and instructed it to prepare plans andspecifications for the design of the Stage 2 building work. Drawings were ultimatelyissued and, between May 2005 and April 2006, the defendant constructed the Stage 2building work. The building work was carried out pursuant to separate buildingconsents.[67] The Stage 3 building work involved an extension to the library. The plaintiffsentered into a design and build contract with the defendant for this purpose. Buildingconsent was issued in May and October 2008. Between May 2008 and November2008, Hawkins constructed the Stage 3 building work.[68] Between 2004 and 2009, the defendant was required to fulfil its contractualobligations and complete outstanding remedial issues left over from the defectsliability periods under the Stage 1, 2 and 3 building works. In October 2003, it issueda list of outstanding remedial items for the Stage 1 work. In August 2004, the projectmanager (Bovis Lend Lease) wrote to the third plaintiff confirming that, other thanthree or four minor defects, the defendant had actioned the outstanding remedial worksrequired for Stage 1 building works.Leaks appear[69] Between May 2010 and August 2011, the School reported serious recurringleaks in various school buildings. Around 2012, the plaintiffs engaged expert buildingsurveyors to inspect and investigate the Stage 1, 2 and 3 building work. Theinspections and investigations identified defects in the construction of the works. Thedefects are set out in Schedule 1 to the Fourth Amended Statement of Claim, which isattached as Appendix B to this judgment.[70] The plaintiffs say that as a result of the defects, the building works are notweathertight, watertight, durable, are at risk of not being safe and sanitary, and havesuffered damage. Particulars of the damage are also set out in Appendix B. Theplaintiffs say that as a result of the defects and the damage, the works do not complywith applicable building standards, including:(a) the functional and/or performance requirements of cls B2 and E2 of theNew Zealand Building Code; and/or(b) the Building Act 1991/2004; and/or(c) the relevant and/or specified product specifications; and/or(d) good trade practice, including reasonable standard of skill and care.(together, the building standards)[71] The plaintiffs say that as a result of the defects and damage, remedial work isneeded. The scope of remedial work is set out in Schedule 3 to the Fourth AmendedStatement of Claim. The plaintiffs also refer to the cost of investigation, together withadditional losses, including the cost of temporary rooms and facilities to accommodatestaff and students. It is noted that the cost of renting temporary rooms and facilities iscurrently estimated to be $1,697,595.92 (plus GST). In terms of the cost of remedialworks, the plaintiffs say it is "currently estimated to be not less than $18,270,886.01(plus GST)".11 The particulars of the remedial works they say is needed are also setout in Schedule 3.[72] The pleadings also contain the currently estimated costs per block as follows:Stage 1 and 3 Building Work Remedial CostsBlock Cost (plus GST)(i) Whanau One $1,855,542.84(ii) Whanau Two $1,818,745.45(iii) Whanau Three $1,991,108.93(iv) Administration Building $1,781,608.98(v) Gymnasium & Performing Arts $4,944,564.19(vi) Library & Library Extension Stage 3Building Work$1,754,042.95Stage 2 Building Work Remedial CostsBlock Cost (plus GST)(vii) Whanau Four $1,362,251.66(viii) Whanau Five $1,413,762.95(ix) Whanau Six $1,349,258.06[73] In terms of the causes of action, the first cause of action is negligence inrelation to the Stage 1 building work. The pleadings identify the defendant's duty ofcare and breach. Among the pleaded breaches are the following:(a) To ensure that any defects liability remedial work to the Stage 1building work was undertaken to a reasonable standard of skill and careand in accordance with building standards.Particulars(i) The Stage 1 building work was constructed with defects and hassuffered damage.(ii) The Stage 1 building work does not comply with the buildingstandards.11 The evidence now filed by the plaintiffs suggests the total loss is closer to $25,000,000.(iii) The defects liability remedial work carried out by the defendantfailed to rectify the defects in the Stage 1 building work.[74] The second cause of action pleads negligence in relation to the Stage 2 buildingwork and follows the broad formula laid down in relation to the first cause of action.It also identifies a breach of duty of care and is similarly pleads particulars of breach.[75] The third cause of action is also negligence, in relation to the Stage 3 buildingwork, following the same format as the Stage 1 pleading.Process[76] For present purposes, reviews of decisions of Associate Judges are availableunder r 2.3 of the High Court Rules (since repealed):2.3 Review of decision(1) An application for a review, under section 26P(1) of the Act, of anorder or a decision made by an Associate Judge must be byinterlocutory application, which must fully state the grounds of reviewand what exactly is challenged by the applicant.(4) If the order or decision being reviewed was made following adefended hearing and is supported by documented reasons,—(a) the review proceeds as a rehearing; and(b) the Judge may, if he or she thinks it is in the interests ofjustice, rehear the whole or part of the evidence or receivefurther evidence.(5) In all other cases,—(a) a review proceeds as a full rehearing; and(b) the Judge may give the order or decision the weight he or shethinks appropriate.[77] The plaintiffs submit I should not entertain the review. The defendants say Ishould approach the application de novo, alleging, in short, procedural unfairness. Ido not propose to waste energy on the process point. I will look to the merits, thoughon the basis that the defendant carries the burden of showing Associate Judge Bellerred.The framework for particulars[78] Kós J (as he then was) recently summarised the requirements for pleadings.12He noted:[19] It follows that the extent of particularisation of pleading has changedsomewhat over the last 25 years. But its fundamental function is unaltered.Particulars of pleading are important to:(a) inform defendants as to the case they have to meet;(b) limit the scope of matters the plaintiff may put in issue at trial(or in pre-trial settlement discussion);(c) enable the defendants to know what witnesses it will need toretain and enable them to start preparing evidence ahead ofthe formal exchange of evidence; and(d) provide an opportunity for a defendant to seek summarydetermination on the basis that the claim as pleaded isuntenable.The latter course is seldom a consideration in ordinary residential leaky homescases. So the real functions of particulars in such cases are those identified at(a) to (c) above.[79] Relevant to the present case, Kós J also observed:[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:(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);12 Platt v Porirua City Council [2012] NZHC 2445.(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.[80] And further:[34] First, consistent with longstanding principle in relation to the pleadingof negligent omission cases, the statement of claim needs to particularise anyobjective standards, expressed either in specific acceptable solutions deemedcompliant with the Building Code or in alternative solutions (e.g.manufacturers installation standards), that the plaintiff says forms part of thestandards the builder and contractors were required to meet, and whichtherefore indirectly are impressed upon the Council when exercising its ownduties. (footnotes omitted)[81] The following comment, made by the Court of Appeal in Price Waterhouse vFortex Group Ltd also appears particularly apposite:13In the result, and particularly in complex cases, a rather more detailed factualnarrative has come to be required than was the case in earlier and simplertimes. That does not require the full detail which later will be contained in abrief of evidence. Nor does the modern requirement for pre-trial exchange ofbriefs dilute the earlier and differently based requirement for sufficientlyparticular pleading. What is required is an assessment based on the principlethat a pleading must, in the individual circumstances of the case, state the issueand inform the opposite party of the case to be met. As so often is the case inprocedural matters, in the end a common-sense and balanced judgment basedon experience as to how cases are prepared and trials work is required. It isnot an area for mechanical approaches or pedantry.[82] I will address each of the claimed bases for review in light of this guidance.1413 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.14 I have also been guided by the observations of Judge Osbourne in Body Corporate 74246 v QBEInsurance (International) Ltd [2015] NZHC 1360.The contracts[83] The defendant submits:(a) the plaintiffs rely on contracts to establish the existence and scope ofalleged duties of care owed by the defendant in respect of Stages 1, 2and 3 of the development;(b) the duties as pleaded in paras 74, 81 and 88 of the Fourth AmendedStatement of Claim and are formulated in such terms that they arecontractual in nature;(c) the nature and scope of the contractual regime relating to the works andthe contractual obligations of the defendant is highly relevant to theexistence and scope of the alleged duties of care; and(d) the Court of Appeal has recently held that the contractual regime mightexclude proximity, and that vulnerability is a relevant consideration anda question of fact to be decided by reference to the contractual matrix.15[84] The defendant thus submits Associate Judge Bell was wrong when he statedthat:16To establish whether there was a duty of care, it is sufficient for the plaintiffsto plead that there was a contract with the defendant, but more is not required.That is because the plaintiffs are not suing for breaches of the terms of thecontract, but for breaches of a duty of care. The scope of the works that wererequired by the defendant will be determined by the plans and specifications.Those are already known. I see no need to direct further particulars as to termsof the contract.Assessment[85] It appears that copies of the Stage 1, 2 and 3 contracts cannot be found. Thereis no dispute, however, that there were building contracts between the parties relating15 Citing Invercargill City Council v Southland Indoor Leisure Centre Charitable Trust [2017]NZCA 68, [2017] 2 NZLR 650 at [74]–[75] and [77].16 8th Case Management Conference Minute of Associate Judge R M Bell, dated 25 October 2017,at [32].to the building works. The central issue is whether the plaintiffs must plead theparticulars of the Stages 1, 2 and 3 contracts.[86] Associate Judge Bell addressed the defendant's position in this way:Particulars of contracts[30] The defendant worked for the plaintiffs on Stages 1, 2 and 3 undercontract. The plaintiffs have pleaded that there were contracts, but thedefendant says that the pleading is not adequate. It wants the plaintiffs toplead particulars of each contract. The plaintiffs have not sued the defendantfor breach of contract, but in negligence. They will rely on the work beingcarried out under contract as going to establish a concurrent duty of care innegligence. The defendant will contest the duty of care. It will say that itsliability can only be contractual.[31] It is odd that neither side has discovered any contracts between theparties. On the basis of contemporary documents, the defendant believes thatthe NZIA terms of contract were the general terms. The plans andspecifications apparently are not in dispute. The defendant has relied onstandard NZIA terms to plead its counterclaim. It is not disputed that Stage 1was a construction contract only, whereas Stages 2 and 3 were design andbuild contracts.[87] He then made the observations listed above at [84]. I am not so sanguine aboutthe relevance (or otherwise) of the underlying contracts. It is at least arguable that acontract may limit a building contractor's liability in tort. That was the position takenby the Court of Appeal in Andrews Property Services Ltd.17 As the Court thereobserved, the contract may inform the assessment of proximity and the scope ofresponsibility assumed by the builder.18[88] But I agree with Associate Judge Bell that the plaintiffs' case is neverthelesssufficiently clear to enable the defendant to prepare its defence. First, prima facieproximity is sufficiently pleaded, namely that the defendant undertook to perform thebuilding works. Second, I agree that the pleadings clearly allege the scope of thecontracted works by reference to, among other things, the plans and specifications. Iwould also add that the building consents are pleaded, further clarifying the alleged17 Andrews Property Services Ltd v Body Corporate 160361 [2016] NZCA 644, [2017] 2 NZLR 772at [88], [93].18 A similar point made in Invercargill City Council v Southland Indoor Leisure Centre CharitableTrust [2017] NZCA 68, [2017] 2 NZLR 650, though the Court of Appeal's decision on liabilityhas been reversed by the Supreme Court in Southland Indoor Leisure Centre Charitable Trust vInvercargill City Council [2017] NZSC 190.scope of the contracted works. Third, the claims are based in tort, not contract, andassume that the contracts do not affect the defendant's duty of care in terms of thebuilding works. Fourth, it was available to the defendant to affirm or deny theexistence of the contracts or to assert that certain terms were agreed that might limitthe scope of responsibility for the works, and therefore liability in negligence. Fifth,the capacity to plead and offer evidence on these matters is equally within the controlof the defendant as it is the plaintiffs (both being parties to the building contracts).Sixth, in terms of the pleadings to date, the defendant in fact alleges the existence ofthe specified contracts, exemplifying that it is under no serious disadvantage from theplaintiffs' apparent incapacity to positively plead the terms of the contracts.19[89] I therefore see no prejudice to the defendant in form or substance arising fromthe absence of pleadings as to the precise terms of the contract which are no longer inthe control or possession of the parties.Particulars of defects[90] The defendant says the main problem with the Fourth Amended Statement ofClaim, as currently pleaded, is the consolidation of defects into "global defects",which has occurred between the Second and Fourth Amended Statements of Claim.Specifically:It is unclear from the 4ASOC (a) whether the alleged defects are design orconstruction (or other) defects; (b) which plans and/or specifications are reliedon for each alleged design defect and the location of alleged insufficiencies inthe plans and/or specifications; (c) where the defects are in terms of whichbuildings and the precise location on the relevant buildings; (d) the allegeddamage caused by each defect; (e) which specific building standards ortechnical requirements are alleged to have been breached for each defect; and(f) the remedial work required for each defect and the quantum of the loss forthat defect.[91] To illustrate, the defendant says defect A (inadequate roof pitch) is pleaded inthe Second Amended Statement of Claim as an alleged defect and should not be recastas a cause/particular of the global defect "poorly formed metal roofs" in the FourthAmended Statement of Claim. It is said to be a defect in its own right. The defendantcontends the effect of the approach taken is the pleading fails to identify, or obscures,19 See McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR5.21.06].the nature of the individual alleged defects, the location of the alleged defects and thetechnical requirements that have allegedly not been met in respect of each allegeddefect. The defendant says a proper nexus must be pleaded between each individualdefect and the consequences of that defect in terms of alleged damage, remedial worksand cost.20[92] Associate Judge Bell found as follows:[34] If I were to uphold all these submissions and direct the plaintiffs tofile a new statement of claim, that would severely disrupt preparation for trial.The close of pleadings date is imminent – 31 October 2017. The plaintiffs arepreparing their evidence for delivery on 3 November 2017. The plaintiffsshould not be diverted from preparing their evidence by late applications forfurther and better particulars. The fourth amended statement of claim isclearly the result of extensive re-drafting, which must have taken time awayfrom preparation of evidence. If I were to require even more particulars to begiven, that would require many more hours of work before a final pleading isreached, without the assurance that there will be no further challenge from thedefendant. If the defendant had made its play for further particulars sixmonths ago, an application for a more explicit pleading would have had sometraction. Further particulars could well have been ordered. But it is now toolate. Delay in applying for particulars is a proper ground for refusing to orderthem. Astrovlanis SA v Linard is a stark example. Underwriters sued under amarine insurance policy for loss of a vessel pleaded that the plaintiff hadscuttled the vessel, but did not give any particulars. The plaintiff did not applyuntil shortly before trial. The majority in the Court of Appeal said that theywould have ordered particulars, but for the plaintiff's delay. I apply that here.The defendant has made its pitch too late.[35] Even though further particulars might have been ordered if anapplication had been made earlier, the defendant is not at any significantdisadvantage. It has had since 2013 in which to investigate and learn aboutthe defects in the school. It has recently visited the school, accompanied bythe plaintiffs' expert, to reacquaint itself with the school and the defects. It isable to visit the school again. It will shortly receive the plaintiffs' statementsof evidence. The plaintiffs' pleadings of defects with particulars given as tothe defects, location, cause and particulars, damage, building coderequirements, technical requirements and remedial works required aregenerally consistent with particulars of defects, damage and remedial worksfound in other leaky building proceedings in this court. It has not apparentlyinstructed an expert on design issues. As it is being sued for defects allegedlycaused under two design/build contracts, it may wish to address design issues.It is likely to do so for Stage 1 as well, as it denies any construction defects.It has time in which to arrange that evidence. To the extent that the defendantmay be under any disadvantage, it has only itself to blame for not having takenthese matters up earlier.(footnotes omitted)20 Citing Wharf Properties Ltd v Eric Commune Associates (No 2) (1991) 52 BLR 1 (PC) at 21.[93] I broadly agree. I have also examined the alleged deficiencies. They comprisethe following main claims:(a) New defects - these are listed and addressed above at [25]-[31].(b) Nature of alleged defects – the pleadings fail to clearly identify whetherthe alleged defects are design or construction defects; for example,Defect 4 (the defendant also says the evidence does not clarify theposition and includes a fresh allegation, namely failure to warn).(c) Location of the defects pleaded under Defects 2 and 4-7 are notidentified (and the evidence refers to locations that do not appear tocorrespond to the pleadings).(d) Water ingress locations have not been identified (and the evidencerefers to locations which do not appear to correspond to the pleadings).(e) Building code/technical requirements allegedly breached are notclearly identified (and the evidence does not appear to preciselycorrespond to the pleadings – it, for example, alleges failure to complywith drawings).(f) Remedial work/costs are not clearly pleaded.[94] But, in my view, the schedules attached to the Fourth Amended Statement ofClaim clearly specify the matters identified in Platt that must be pleaded, namely thedefects (including their location), particulars of breach, the relevant standards, and theloss. Furthermore, the alleged deficiencies in the pleadings do not affect the ability ofthe defendant to fully prepare its defence.[95] I do not propose to consume further space with a response to every allegeddeficiency. It is sufficient to refer to the key examples highlighted by the defendant.First, Defect 4 refers to:The materials used to construct the principal soffits, reverse eaves and pop uproofs are not fit for purpose[96] The defendant complains the plaintiffs have failed to properly plead whetherthis is a construction, design or other type of defect, noting the evidence now suggeststhe defendant had a duty to warn the plaintiffs about the specified materials and theirmaintenance. I accept that a fresh allegation about the defendant's duties may requireamended pleading, the significance of which I have addressed above at [31]. But forpresent purposes, the relevant pleading is plain and clear. The specified materials wereallegedly not fit for purpose. The particulars allege the product "has been incorrectlyspecified" and identify the standards not met. That is the alleged material defect towhich the defendant must respond. Any omission to plead that it is a construction,design or other type of defect will only be relevant to the extent the defendant deniesresponsibility for the defect, a matter within the knowledge of the defendant. Amendedpleadings are not necessary for the defendant to be able to mount that defence.[97] Second, the defendant complains the plaintiffs have not pleaded the remedialwork and costs in respect of each individual defect to satisfy the requirement for aproper nexus to be pleaded between each individual defect and consequences of thatdefect. However, as the defendant concedes, the evidence of Heidi van Eeden providesa breakdown of the remedial work costs in respect of each of the defects. In thatevidence, she apportions the remediation cost to each of the seven alleged defects. Inmy view that is adequate to sufficiently inform the defendant of the nexus between thealleged defect and the cost of rectification.[98] In this regard, the defendant refers to Body Corporate 351522 v QueenstownLakes District Council as authority for the proposition that a sufficient nexus must bepleaded.21 In that case, however, the issue was simply whether the cost of remediationarose from one or more of the three pleaded problems. The plaintiffs have alreadyprovided the type of breakdown required in that case.[99] Third, the defendant's complaint about lack of identification of locations ofdefects and standards not met is not reconcilable with the schedules which clearly state21 Body Corporate 351522 v Queenstown Lakes District Council [2013] NZHC 559.these matters, or allow them to be inferred – for example in terms of water ingress.Apparent inconsistencies with the evidence go to issues of proof not pleading.[100] The upshot of this is that I am satisfied:22(a) Sufficient information has been provided to inform the defendant of thecase it must meet on the defects and to enable it to take steps to respond.(b) There is no real risk the defendant may face at trial an ambush if furtherparticulars are not provided.(c) The request by the defendant is not oppressive, but it is unreasonablein the circumstances.[101] Finally, I note the defendant relies on the evidence exchanged to claim anongoing lack of clarity as to matters listed above at [90]. I agree with the defendantthat by the time of trial there should be no ambiguity about those matters. As Turner Jstated in Notter v McInnes, particulars assist not only the defendant in their preparationfor trial, but "the Court itself will be assisted by the clarity which furnishing ofparticulars must help to impart to the actual Court proceedings".23 As it currentlystands, there is no substantial prejudice to the defendant because the Fourth AmendedStatement of Claim, for reasons stated, sufficiently signals the claims it must respondto. But there should be no lingering ambiguity about these matters at trial.[102] To address this concern, I propose the following course. The experts mustcaucus on the matters raised by the defendant at [90] with a view to reachingagreement as to those particulars. Areas of agreement and disagreement will need tobe recorded, as should any necessary concessions. With the benefit of the joint expertcaucusing on these matters, the plaintiff should address the matters raised by thedefendant to the extent necessary, within its opening submissions. From that point, itwill be a matter for the trial judge as to whether the pleadings and evidence providesufficient clarify on these matters in order to sustain the plaintiffs' claims. This will22 I have here answered the three questions posited in Body Corporate 74246 v QBE Insurance(International) Ltd [2015] NZHC 1360 at [18](h).23 Notter v McInnes [1961] NZLR 793 at 794 (SC).then enable the defendant to mount a challenge based on lack of particulars at trial, ifthat proves necessary.[103] Overall, while further elaboration and clarification of aspects of the pleadingsmay be useful, I am satisfied the pleadings have served their proper purpose, and giventhe defendant sufficient notice of the plaintiffs' claims. In this context, I endorseAssociate Judge Bell's observation that given the proximity to trial, it is too late andwould be unfair to the plaintiffs to require further particularisation now. The additionaldirections as to expert caucusing should address any residual concerns.Outcome[104] The application to adjourn the trial is declined, subject to the timetabling ordersset out at [106] below.[105] The application to review the decision of Associate Judge Bell is declined,subject to the following directions:(a) The joint expert conference must address the matters raised by thedefendant at [2](d)(i) of the application for review.(b) The plaintiff must provide the particulars sought in respect of thematters raised by the defendant at [2](d)(i) of the review application, tothe extent it remains necessary following expert caucusing, in itsopening submissions.[106] I order the following amendments to the timetable:(a) The defendant shall exchange its evidence on 15 January 2018, but onthe condition the defendant is to make its briefs of evidence availableas soon as they are completed.(b) The experts are to informally confer with each other in theircorresponding fields for the purposes of identifying areas of agreementand disagreement, and in preparation for a formal expert conference,which is to take place no later than 29 January 2018. A joint expertreport is to be produced as soon as possible thereafter.(c) Evidence in reply is to be filed no later than 5 February 2018, inanticipation that the expert conferral process will narrow the issuesbetween the experts.(d) Leave is granted to the parties to seek amendments to the timetable ifnecessary.[107] Given the proximity to trial, costs are reserved.Addendum[108] I issued my rulings in advance of this judgment so that the parties knew wherethey stood. Since then the plaintiffs have sought an adjustment to the timetabling toreinsert the time for joint expert caucusing because of witness availability issues.Other knock on timetabling adjustments are also sought. The adjustments seemsensible. I make those adjustments accordingly, together with an order granting leaveto come back to the Court if necessary.