BODY CORPORATE NUMBER DPS 91535 v 3A COMPOSITES GmbH [2022] NZHC 2355

BODY CORPORATE NUMBER DPS 91535 v 3A COMPOSITES GmbH [2022] NZHC 2355

The application for representative orders was dismissed because the plaintiffs failed to demonstrate sufficient commonality and that the proposed common issue (particularly the allegation that Alucobond PE/Plus are inherently incapable of meeting the Building Code) was a substantial and proportionate basis for representative treatment across the proposed class. The applicants provided inadequate particulars about the intended represented group and their cladding, relied on a potentially contrived, overbroad 'inherent incapability' theory rather than building-specific code assessments, and did not show the representative mechanism would benefit the group without unfair prejudice to...

Citation
[2022] NZHC 2355
Parties
First Plaintiff: Body Corporate Number DPS 91535; Second Plaintiff: Argosy Property No 1 Limited; First Defendant: 3A Composites GmbH; Second Defendant: Terminus 2 Limited; Third Defendant: Skellerup Industries Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 September 2022
Procedural Posture
Civil Representative Proceeding (application for Representative Orders Under High Court Rules R 4.24) / Interlocutory Application for Leave to Proceed as Representative Plaintiffs (application Dismissed)
Outcome
Application for representative orders under High Court Rules r 4.24 dismissed
Legal Topics
Representative Proceedings, Negligence, Duty to Warn, Building Code Compliance, Product Combustibility, Negligent Misstatement, Litigation Funding
Tort Building and Construction Law Civil Procedure Product Liability Representative Proceedings Negligence Duty to Warn Building Code Compliance +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 12 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Body Corporate Number DPS 91535

First Plaintiff

Argosy Property No 1 Limited

Second Plaintiff

3A Composites GmbH

First Defendant

Terminus 2 Limited

Second Defendant

Skellerup Industries Limited

Third Defendant

Procedural Posture

Civil Representative Proceeding (application for Representative Orders Under High Court Rules R 4.24) / Interlocutory Application for Leave to Proceed as Representative Plaintiffs (application Dismissed)

Legal Issues

  1. 1 Whether plaintiffs may proceed as representative plaintiffs under HCR r 4.24
  2. 2 Whether there is sufficient common interest/shared issues across the proposed class
  3. 3 Whether Alucobond PE and Alucobond Plus are inherently incapable of meeting Building Code fire-spread requirements

Ratio Decidendi

The application for representative orders was dismissed because the plaintiffs failed to demonstrate sufficient commonality and that the proposed common issue (particularly the allegation that Alucobond PE/Plus are inherently incapable of meeting the Building Code) was a substantial and proportionate basis for representative treatment across the proposed class. The applicants provided inadequate particulars about the intended represented group and their cladding, relied on a potentially contrived, overbroad 'inherent incapability' theory rather than building-specific code assessments, and did not show the representative mechanism would benefit the group without unfair prejudice to...

Court Disposition

Application for representative orders under High Court Rules r 4.24 dismissed

Orders

  • The plaintiffs' application for representative orders under r 4.24 is dismissed
  • Preliminary view as to costs: Body Corporate Number DPS 91535 and Argosy Property No 1 Limited jointly and severally to pay 2B costs to each of 3A Composites GmbH, Terminus 2 Limited and Skellerup Industries Limited on each step of the application; second counsel allowed for the application