TURNER V ATTORNEY-GENERAL HC AK CIV-2011-404-003968

TURNER V ATTORNEY-GENERAL HC AK CIV-2011-404-003968

The claim lodged by Mr and Mrs Peters was not an eligible claim because they were not owners for purposes of s14 and were not authorised to act for Peters Trustee Company Ltd; the Chief Executive erred in amending the claimant to PTC in 2009 because that substituted a new party and defeated the respondent's...

Source-derived case information.

Citation
openlaw-770992ab_5cec_4d5f_a17d_172a96fb6262.pdf
Parties
Applicant: Peter Wayne Turner; First Respondent: Attorney-General sued as Department of Building and Housing (Weathertight Services); Second Respondent: Peters Trustee Company Limited; Third Respondent: Auckland City Council (now Auckland Council); Fourth Respondent: Norman Wilton; Fifth Respondent: Stanley Armon
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 October 2011
Procedural Posture
Judicial Review / Judgment
Outcome
Application for judicial review granted
Legal Topics
Eligibility Under Weathertight Homes Resolution Services Act 2006, Ownership Criterion, Built Criterion, Amendment of Claimant, Limitation Defence
Administrative Law Statutory Interpretation Property Law Building Law Limitation Law Eligibility Under Weathertight Homes Resolution Services Act 2006 Ownership Criterion Built Criterion +2 more

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Parties

Peter Wayne Turner

Applicant

Attorney-General sued as Department of Building and Housing (Weathertight Services)

First Respondent

Peters Trustee Company Limited

Second Respondent

Auckland City Council (now Auckland Council)

Third Respondent

Norman Wilton

Fourth Respondent

Stanley Armon

Fifth Respondent

Procedural Posture

Judicial Review / Judgment

Legal Issues

  1. 1 Whether the persons who lodged the WHRS application were 'owners' for s14 purposes
  2. 2 Whether the Chief Executive had power to amend the named claimant and whether that amendment was lawful given limitation consequences
  3. 3 Proper legal test for when a dwelling-house was 'built' under s14(a) of the WHRS Act

Ratio Decidendi

The claim lodged by Mr and Mrs Peters was not an eligible claim because they were not owners for purposes of s14 and were not authorised to act for Peters Trustee Company Ltd; the Chief Executive erred in amending the claimant to PTC in 2009 because that substituted a new party and defeated the respondent's limitation defence. The proper approach to 'built' is that it refers to physical completion of the work required by the building consent; assessing habitation/final inspection dates is an acceptable practical method but the ownership error was dispositive.

Court Disposition

Application for judicial review granted

Orders

  • Decision of Department of Building and Housing amending the name of the claimant to Peters Trustee Company Ltd set aside
  • Decision of the Department of Building and Housing confirming the eligibility of the claim set aside