BODY CORPORATE 169791 & ORS V AUCKLAND CITY COUNCIL HC AK CIV-2004-404-005225

BODY CORPORATE 169791 & ORS V AUCKLAND CITY COUNCIL HC AK CIV-2004-404-005225

The Court granted leave for the first defendant to adduce settlement evidence and granted the fourth defendants leave to subpoena and call witnesses previously briefed by the first defendant subject to meeting reasonable professional fees under the existing regulations (no uplift ordered). The Court granted some...

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Citation
openlaw-5316d9f8_cff2_4923_b7bf_16a41727bf4a.pdf
Parties
First Plaintiffs: BODY CORPORATE 169791 & ORS; Second Plaintiffs: MAGDA FODERMAYER & ORS; First Defendant: AUCKLAND CITY COUNCIL; Second Defendant: LINES DESIGN LIMITED; Third Defendant (claim Discontinued): STEVE MITCHELL; Fourth Defendant: SYMPHONY GROUP LIMITED; Fourth Defendant: SYMPHONY PROJECTS LIMITED; Fourth Defendant: WAIMARIE MANAGEMENT LIMITED; Fourth Defendant: GLANVILLE INVESTMENTS LIMITED; First Third Party (claim Discontinued): ONYX GROUP LIMITED; Second Third Party (claim Struck Out): GENERAL MANUKAU ENTERPRISES LIMITED; Third Third Party (claim Discontinued): ALUMINIUM CITY (PENROSE) LIMITED; Fourth Third Party: MATTHEW VESEY (T/A CLADRITE DEVELOPMENTS); Fifth Third Party (claim Discontinued): FIRE ENGINEERING CONSULTANTS LIMITED; Sixth Third Party (claim Discontinued): GREG ANTHONY THOMPSON (T/A HITEX PLASTERING); Seventh Third Party (claim Discontinued): RON WRIGHT & ASSOCIATES; Eighth Third Party (claim Discontinued): VERO LIABILITY INSURANCE
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 December 2010
Procedural Posture
Civil Building Defects / Negligence / Pre Trial Directions Hearing; Eight Day Trial Fixture Scheduled April 2011
Outcome
Applications partly granted and partly declined; orders made as specified and remaining applications adjourned
Legal Topics
Settlement Evidence, Amendment of Pleadings, Subpoenaing Witnesses, Expert Witness Fees, Contributory Negligence, Limitation, Stay of Execution, Strike Out for Non Payment of Costs
Civil Procedure Building and Construction Tort Negligence Costs and Enforcement Settlement Evidence Amendment of Pleadings Subpoenaing Witnesses Expert Witness Fees +4 more

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Parties

BODY CORPORATE 169791 & ORS

First Plaintiffs

MAGDA FODERMAYER & ORS

Second Plaintiffs

AUCKLAND CITY COUNCIL

First Defendant

LINES DESIGN LIMITED

Second Defendant

STEVE MITCHELL

Third Defendant (claim Discontinued)

SYMPHONY GROUP LIMITED

Fourth Defendant

SYMPHONY PROJECTS LIMITED

Fourth Defendant

WAIMARIE MANAGEMENT LIMITED

Fourth Defendant

GLANVILLE INVESTMENTS LIMITED

Fourth Defendant

ONYX GROUP LIMITED

First Third Party (claim Discontinued)

GENERAL MANUKAU ENTERPRISES LIMITED

Second Third Party (claim Struck Out)

ALUMINIUM CITY (PENROSE) LIMITED

Third Third Party (claim Discontinued)

MATTHEW VESEY (T/A CLADRITE DEVELOPMENTS)

Fourth Third Party

FIRE ENGINEERING CONSULTANTS LIMITED

Fifth Third Party (claim Discontinued)

GREG ANTHONY THOMPSON (T/A HITEX PLASTERING)

Sixth Third Party (claim Discontinued)

RON WRIGHT & ASSOCIATES

Seventh Third Party (claim Discontinued)

VERO LIABILITY INSURANCE

Eighth Third Party (claim Discontinued)

Procedural Posture

Civil Building Defects / Negligence / Pre Trial Directions Hearing; Eight Day Trial Fixture Scheduled April 2011

Legal Issues

  1. 1 Whether the first defendant may adduce evidence of settlement after settling with plaintiffs
  2. 2 Whether fourth defendants may call witnesses previously briefed by the first defendant and who pays their fees
  3. 3 Whether fourth defendants should be granted leave to amend defences to add contributory negligence, betterment, volenti or limitation defences

Ratio Decidendi

The Court granted leave for the first defendant to adduce settlement evidence and granted the fourth defendants leave to subpoena and call witnesses previously briefed by the first defendant subject to meeting reasonable professional fees under the existing regulations (no uplift ordered). The Court granted some amendments by consent but refused late applications to add new allegations of contributory negligence, and refused late proposed affirmative defences of betterment and volenti due to prejudice and lateness. Applications concerning stay of execution of a costs award and striking out for non-payment were adjourned with a timetable for evidence.

Court Disposition

Applications partly granted and partly declined; orders made as specified and remaining applications adjourned

Orders

  • Auckland City Council granted leave to adduce evidence of Sally Margaret Grey (consent order); costs reserved in relation to that application
  • Fourth defendants permitted to subpoena, call and lead evidence from witnesses previously briefed by the first defendant; fourth defendants must meet reasonable professional fees payable under the Witnesses and Interpreters Fees Regulations 1974