BODY CORPORATE 88863 AND ORS V PIMENTO HOLDINGS LIMITED HC WN CIV-2011-485-1873

BODY CORPORATE 88863 AND ORS V PIMENTO HOLDINGS LIMITED HC WN CIV-2011-485-1873

s 393(2) applies to Mainzeal's pleaded tort claim against Marsden; the last relevant negligent act or omission occurred by 4 December 2001 so the claim was commenced after the 10-year long stop and is statute-barred; Mainzeal's pleading did not properly invoke s 17 contribution and continuing contractual duties do not extend tort limitation.

Citation
openlaw-d2020042_0e56_4054_b102_858fd48c0218.pdf
Parties
Plaintiffs: Body Corporate 88863 and Ors; First Defendant: Pimento Holdings Limited; Second Defendant: Mainzeal Property and Construction Limited; Third Defendant: Wellington City Council; Fourth Third Party: T R & E L Wycherley trading as Creative Aluminium; Sixth Third Party: Marsden Decorators Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 August 2012
Procedural Posture
Civil Building Defect / Negligence / Application for Strike Out and Summary Judgment on Third Party Notice
Outcome
Summary judgment for Marsden Decorators Limited; Mainzeal's third party claim against Marsden dismissed as statute-barred under s 393(2) Building Act 2004
Legal Topics
Statute of Limitations, Contribution Between Tortfeasors, Duty of Care, Summary Judgment, Strike Out
Building Law Tort Limitation Law Civil Procedure Statute of Limitations Contribution Between Tortfeasors Duty of Care Summary Judgment +1 more

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Parties

Body Corporate 88863 and Ors

Plaintiffs

Pimento Holdings Limited

First Defendant

Mainzeal Property and Construction Limited

Second Defendant

Wellington City Council

Third Defendant

T R & E L Wycherley trading as Creative Aluminium

Fourth Third Party

Marsden Decorators Limited

Sixth Third Party

Procedural Posture

Civil Building Defect / Negligence / Application for Strike Out and Summary Judgment on Third Party Notice

Legal Issues

  1. 1 Whether s 393(2) Building Act 2004 applies to Mainzeal's third party claim against Marsden
  2. 2 Whether the date of the act or omission on which the claim is based is on or after 8 December 2001 (within 10 years)

Ratio Decidendi

s 393(2) applies to Mainzeal's pleaded tort claim against Marsden; the last relevant negligent act or omission occurred by 4 December 2001 so the claim was commenced after the 10-year long stop and is statute-barred; Mainzeal's pleading did not properly invoke s 17 contribution and continuing contractual duties do not extend tort limitation.

Court Disposition

Summary judgment for Marsden Decorators Limited; Mainzeal's third party claim against Marsden dismissed as statute-barred under s 393(2) Building Act 2004

Orders

  • Summary judgment entered for Marsden Decorators Limited against Mainzeal on the third party notice
  • Costs reserved