BODY CORPORATE 346799 v KNZ INTERNATIONAL CO LTD [2016] NZHC 1523

BODY CORPORATE 346799 v KNZ INTERNATIONAL CO LTD [2016] NZHC 1523

The Court held the fire safety allegations were additional particulars of the existing negligence cause of action against the Council and not an 'essentially different' new cause of action; service by email on the close of pleadings date was effective; ordinary prejudice from having to meet a strengthened claim does not satisfy r 15.1(1)(b) which targets misuse of court processes; accordingly the strike‑out application was dismissed and the amendments permitted.

Citation
[2016] NZHC 1523
Parties
First Plaintiff: Body Corporate 346799; Second Plaintiffs: HA THI HOANG & Ors; First Defendant: KNZ International Co Limited (formerly Ganada Development Co Ltd and Dae Ju Developments Co Ltd); Second Defendant: Brookfield Multiplex Construction (NZ) Limited; Third Defendant: Façade Design Services Limited; Fourth Defendant: PBS Contracting Limited (in liquidation – discontinued); Fifth Defendant: Auckland City (Auckland City Council); Sixth Defendant: Bostik New Zealand Limited; First Third Party: Stephen Mitchell Engineers Limited (discontinued); Second Third Party (discontinued): Stephen Mitchell; Third Third Party (discontinued): City Design Limited; Fourth Third Party (discontinued): David Lee; Fifth Third Party: David James Foster; Sixth Third Party: Tristan D'Arcy Harvey-Smith; Seventh Third Party: Willis New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 July 2016
Procedural Posture
Civil Building Defects; Negligence / Interlocutory Strike‑out Application (pre‑trial)
Outcome
Application to strike out aspects of the amended Statement of Claim relating to fire safety defects dismissed; amendments allowed to stand
Legal Topics
Strike Out, Amendment of Pleadings, Cause of Action, Limitation Periods, Service of Documents, Prejudice, Building Code Compliance, Fire Safety Defects
Building Law Civil Procedure Tort Limitation Law Administrative Law Strike Out Amendment of Pleadings Cause of Action +5 more

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Parties

Body Corporate 346799

First Plaintiff

HA THI HOANG & Ors

Second Plaintiffs

KNZ International Co Limited (formerly Ganada Development Co Ltd and Dae Ju Developments Co Ltd)

First Defendant

Brookfield Multiplex Construction (NZ) Limited

Second Defendant

Façade Design Services Limited

Third Defendant

PBS Contracting Limited (in liquidation – discontinued)

Fourth Defendant

Auckland City (Auckland City Council)

Fifth Defendant

Bostik New Zealand Limited

Sixth Defendant

Stephen Mitchell Engineers Limited (discontinued)

First Third Party

Stephen Mitchell

Second Third Party (discontinued)

City Design Limited

Third Third Party (discontinued)

David Lee

Fourth Third Party (discontinued)

David James Foster

Fifth Third Party

Tristan D'Arcy Harvey-Smith

Sixth Third Party

Willis New Zealand Limited

Seventh Third Party

Procedural Posture

Civil Building Defects; Negligence / Interlocutory Strike‑out Application (pre‑trial)

Legal Issues

  1. 1 Whether the amended Statement of Claim alleging fire safety defects was properly served
  2. 2 Whether the fire safety defect allegations constitute a new cause of action and are time‑barred under the Limitation Act 2010 and Building Act 2004
  3. 3 Whether the amendments should be struck out for causing prejudice under r 15.1(1)(b) of the High Court Rules

Ratio Decidendi

The Court held the fire safety allegations were additional particulars of the existing negligence cause of action against the Council and not an 'essentially different' new cause of action; service by email on the close of pleadings date was effective; ordinary prejudice from having to meet a strengthened claim does not satisfy r 15.1(1)(b) which targets misuse of court processes; accordingly the strike‑out application was dismissed and the amendments permitted.

Court Disposition

Application to strike out aspects of the amended Statement of Claim relating to fire safety defects dismissed; amendments allowed to stand

Orders

  • Strike‑out application dismissed in relation to fire safety defect pleadings
  • Amended Statement of Claim of 30 November 2015 to stand as filed