BODY CORPORATE 384825 v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 2019

BODY CORPORATE 384825 v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 2019

The amended statement of defence did not comply with the May Judgment because the schedules failed to specify which pleaded defects each document/recommendation related to and which plaintiffs were put on notice for each defect; therefore the Council must replead particulars per unit owner identifying the specific defects relied on, the specific documents/reports and paragraph/page references that put that owner on notice, and must specify for contributory negligence whether knowledge is actual or imputed, identify agents and the facts giving rise to agent knowledge; failure to mitigate particulars must identify reports, preparer, addressee, issues identified and when plaintiffs were made...

Citation
[2021] NZHC 2019
Parties
First Plaintiff: BODY CORPORATE 384825; Second Plaintiffs: GEORGE FRASER RALSTON & ORS; First Defendant: QUEENSTOWN LAKES DISTRICT COUNCIL; Second Defendant: YEO CONTRACTING LIMITED; Third Defendant (discontinued): JK'S & WBE LIMITED; Fourth Defendant: STUART IAN CRUICKSHANK; Fifth Defendant: PAREMATA CONSTRUCTION LIMITED; Sixth Defendant: HOLMES STRUCTURES LIMITED (In Liquidation); Seventh Defendant: ARCH UNDERWRITING AT LLOYD'S LIMITED; Eighth Defendant: ASTA MANAGING AGENCY LIMITED; Ninth Defendant: HARDY (UNDERWRITING AGENCIES) LIMITED; Tenth Defendant: LIBERTY MANAGING AGENCY LIMITED; Eleventh Defendant: ELLIOT ARCHITECT LIMITED (IN LIQUIDATION); First Third Party: STEPHEN BRUCE MCLEAN; Second Third Party: ELLIOTT ARCHITECT LIMITED; Third Third Party: ROSS MCGREGOR WENSLEY; Fourth Third Party: ARCH UNDERWRITING AT LLOYD'S LIMITED; Fifth Third Party: ASTA MANAGING AGENCY LIMITED; Sixth Third Party: HARDY (UNDERWRITING AGENCIES) LIMITED; Seventh Third Party: LIBERTY MANAGING AGENCY LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 August 2021
Procedural Posture
Civil Building Defects Tort / Pre Trial Interlocutory Application for Particulars and Compliance With Earlier Order
Outcome
Plaintiffs' interlocutory challenge upheld in part; amended statement of defence found non-compliant with prior order and Council ordered to provide further specified particulars; costs reserved; timetable conference listed.
Legal Topics
Particulars, Limitation Defence, Failure to Mitigate, Pleadings, Weathertightness Defects
Building Law Tort Limitation Law Contributory Negligence Civil Procedure Particulars Limitation Defence Failure to Mitigate +2 more

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Parties

BODY CORPORATE 384825

First Plaintiff

GEORGE FRASER RALSTON & ORS

Second Plaintiffs

QUEENSTOWN LAKES DISTRICT COUNCIL

First Defendant

YEO CONTRACTING LIMITED

Second Defendant

JK'S & WBE LIMITED

Third Defendant (discontinued)

STUART IAN CRUICKSHANK

Fourth Defendant

PAREMATA CONSTRUCTION LIMITED

Fifth Defendant

HOLMES STRUCTURES LIMITED (In Liquidation)

Sixth Defendant

ARCH UNDERWRITING AT LLOYD'S LIMITED

Seventh Defendant

ASTA MANAGING AGENCY LIMITED

Eighth Defendant

HARDY (UNDERWRITING AGENCIES) LIMITED

Ninth Defendant

LIBERTY MANAGING AGENCY LIMITED

Tenth Defendant

ELLIOT ARCHITECT LIMITED (IN LIQUIDATION)

Eleventh Defendant

STEPHEN BRUCE MCLEAN

First Third Party

ELLIOTT ARCHITECT LIMITED

Second Third Party

ROSS MCGREGOR WENSLEY

Third Third Party

ARCH UNDERWRITING AT LLOYD'S LIMITED

Fourth Third Party

ASTA MANAGING AGENCY LIMITED

Fifth Third Party

HARDY (UNDERWRITING AGENCIES) LIMITED

Sixth Third Party

LIBERTY MANAGING AGENCY LIMITED

Seventh Third Party

Procedural Posture

Civil Building Defects Tort / Pre Trial Interlocutory Application for Particulars and Compliance With Earlier Order

Legal Issues

  1. 1 Whether the Council's amended statement of defence complied with the May Judgment requiring particulars of limitation, contributory negligence and failure to mitigate
  2. 2 What particulars are necessary to link specific documents/reports to each plaintiff and to specific pleaded defects for the limitation defence
  3. 3 Whether the Council adequately pleaded whether knowledge was actual, constructive or imputed and the identity/facts regarding agents for contributory negligence

Ratio Decidendi

The amended statement of defence did not comply with the May Judgment because the schedules failed to specify which pleaded defects each document/recommendation related to and which plaintiffs were put on notice for each defect; therefore the Council must replead particulars per unit owner identifying the specific defects relied on, the specific documents/reports and paragraph/page references that put that owner on notice, and must specify for contributory negligence whether knowledge is actual or imputed, identify agents and the facts giving rise to agent knowledge; failure to mitigate particulars must identify reports, preparer, addressee, issues identified and when plaintiffs were made...

Court Disposition

Plaintiffs' interlocutory challenge upheld in part; amended statement of defence found non-compliant with prior order and Council ordered to provide further specified particulars; costs reserved; timetable conference listed.

Orders

  • Council to, for each unit owner against whom limitation is pleaded, identify which pleaded defect(s) are said to be statute-barred and for each defect specify the report/document relied on and paragraph or page number within that document said to put the owner on notice
  • Council to, for each unit owner against whom contributory negligence is pleaded, specify whether actual knowledge is alleged and which defect was known, or identify the agent whose knowledge is relied on and provide the facts and circumstances giving rise to the agent's knowledge and any basis for treating agent...