DVK ROOFING AND WATERPROOFING CO LIMITED AND ANOR V AUCKLAND CITY COUNCIL AND ANOR HC AK CIV-2009-404-8107

DVK ROOFING AND WATERPROOFING CO LIMITED AND ANOR V AUCKLAND CITY COUNCIL AND ANOR HC AK CIV-2009-404-8107

The Court refused leave to file Mr Maiden's affidavit because that material was available to the Council before the adjudicator and would improperly extend the rules on fresh evidence to bolster prior conclusions; the Court directed production of the Weathertight Homes Resolution Service file to enable assessment of whether Mr Nicholls' affidavit is necessary, reserved the Council's right to reapply if the file lacks forwarding evidence, and awarded costs to the appellants on a Category 2B basis with disbursements, payable only after final costs in the appeal are fixed.

Citation
openlaw-170a1a77_6e38_4e55_9c12_20b5573e64db.pdf
Parties
First Appellant: DVK ROOFING AND WATERPROOFING CO LIMITED; Second Appellant: IGOR ARAKELIAN; First Respondent: AUCKLAND CITY COUNCIL; Second Respondents: LESLIE RAYMOND HOLT, LINLEY FRANCES HOLT AND BRIAN JOHN ROSE AS TRUSTEES OF THE KAHALA TRUST
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 April 2010
Procedural Posture
Appeal Under the Weathertight Homes Resolution Act 2006 / Interlocutory Application for Leave to Adduce New Evidence on Appeal
Outcome
Application partly granted and partly refused: leave refused for Maiden affidavit; leave reserved in relation to Nicholls pending production of the Service file; costs awarded to appellants on Category 2B basis with disbursements, payable after final determination of appeal.
Legal Topics
Service of Process, Admission of Fresh Evidence on Appeal, Costs, Remittal for Rehearing, Sufficiency of Evidence Before an Adjudicator
Administrative Law Civil Procedure Evidence Weathertight Homes Resolution Act 2006 Service of Process Admission of Fresh Evidence on Appeal Costs Remittal for Rehearing +1 more

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Parties

DVK ROOFING AND WATERPROOFING CO LIMITED

First Appellant

IGOR ARAKELIAN

Second Appellant

AUCKLAND CITY COUNCIL

First Respondent

LESLIE RAYMOND HOLT, LINLEY FRANCES HOLT AND BRIAN JOHN ROSE AS TRUSTEES OF THE KAHALA TRUST

Second Respondents

Procedural Posture

Appeal Under the Weathertight Homes Resolution Act 2006 / Interlocutory Application for Leave to Adduce New Evidence on Appeal

Legal Issues

  1. 1 Whether the first respondent should be granted leave to file two affidavits in opposition to the appeal (Nicholls and Maiden)
  2. 2 Whether service by post under s117 of the Weathertight Homes Resolution Act 2006 was proved
  3. 3 Whether the affidavit of Mr Maiden, expanding prior assessor conclusions, is admissible on appeal

Ratio Decidendi

The Court refused leave to file Mr Maiden's affidavit because that material was available to the Council before the adjudicator and would improperly extend the rules on fresh evidence to bolster prior conclusions; the Court directed production of the Weathertight Homes Resolution Service file to enable assessment of whether Mr Nicholls' affidavit is necessary, reserved the Council's right to reapply if the file lacks forwarding evidence, and awarded costs to the appellants on a Category 2B basis with disbursements, payable only after final costs in the appeal are fixed.

Court Disposition

Application partly granted and partly refused: leave refused for Maiden affidavit; leave reserved in relation to Nicholls pending production of the Service file; costs awarded to appellants on Category 2B basis with disbursements, payable after final determination of appeal.

Orders

  • Weathertight Homes Resolution Service file to be provided to the Registrar of the High Court forthwith
  • If the Service file does not contain material relating to forwarding of items to the appellants, first respondent may re-advance its application to the judge who hears the appeal