BODY CORPORATE 169791 AND ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2004-404-5225

BODY CORPORATE 169791 AND ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2004-404-5225

The Court dismissed Vero's applications to strike out the third party claim and for summary judgment because material factual disputes exist (notably the reason for the endorsement and causation of loss), s11 Insurance Law Reform Act 1977 may apply if the insured proves loss was not caused or contributed to by excluded events, and the fourth defendants' third party notice is valid because Onyx's negligence could be a concurrent cause connected to plaintiffs' claims.

Citation
openlaw-b520e027_6bb3_4471_9ab9_b508f51e402c.pdf
Parties
First Plaintiff: Body Corporate 169791; Second Plaintiff: Magda Fodermayer & Ors; First Defendant: Auckland City Council; Second Defendant: Lines Designs Limited; Third Defendant (claim Discontinued): Steven Mitchell; Fourth Defendant: Symphony Group Limited; Fourth Defendant: Symphony Projects Limited; Fourth Defendant: Waimarie Management Limited; Fourth Defendant: Glanville Investments Limited; First Third Party: Onyx Group Limited; Second Third Party: General Manukau Enterprises Limited; Third Third Party: Aluminium City (Penrose) Limited; Fourth Third Party: Mr Matthew Vesey (t/a Cladrite Developments); Fifth Third Party: Fire Engineering Consultants Limited; Sixth Third Party (claim Discontinued): Mr Greg Anthony Thompson; Seventh Third Party (claim Discontinued): Ron Wright & Associates; Eighth Third Party: Vero Liability Insurance Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 March 2008
Procedural Posture
Civil: Building Defects / Negligence / Insurance Indemnity / Application for Summary Judgment Under HCR R136(2) and Strike Out Under HCR R186 of Fourth Defendants' Third Party Notice
Outcome
application by Vero for summary judgment and striking out third party claim dismissed; third party claim against Vero stands; costs reserved
Legal Topics
Summary Judgment, Strike Out, Third Party Notice (joinder), Indemnity Under Public Liability Policy, Policy Exclusion/endorsement, Section 11 Insurance Law Reform Act 1977, Concurrent Causation, Causation
Tort Contract Insurance Law Civil Procedure Building Law Summary Judgment Strike Out Third Party Notice (joinder) +5 more

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Parties

Body Corporate 169791

First Plaintiff

Magda Fodermayer & Ors

Second Plaintiff

Auckland City Council

First Defendant

Lines Designs Limited

Second Defendant

Steven 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

General Manukau Enterprises Limited

Second Third Party

Aluminium City (Penrose) Limited

Third Third Party

Mr Matthew Vesey (t/a Cladrite Developments)

Fourth Third Party

Fire Engineering Consultants Limited

Fifth Third Party

Mr Greg Anthony Thompson

Sixth Third Party (claim Discontinued)

Ron Wright & Associates

Seventh Third Party (claim Discontinued)

Vero Liability Insurance Limited

Eighth Third Party

Procedural Posture

Civil: Building Defects / Negligence / Insurance Indemnity / Application for Summary Judgment Under HCR R136(2) and Strike Out Under HCR R186 of Fourth Defendants' Third Party Notice

Legal Issues

  1. 1 Does the wet buildings endorsement exclude Vero's liability to indemnify the fourth defendants for damage alleged to have been caused by Onyx's water-blasting?
  2. 2 Does s11 Insurance Law Reform Act 1977 render the endorsement ineffective because the insured can prove loss was not caused or contributed to by the excluded circumstances?
  3. 3 Is the fourth defendants' third party notice against Vero valid where plaintiffs have not specifically pleaded damage arising from Onyx's remedial work?

Ratio Decidendi

The Court dismissed Vero's applications to strike out the third party claim and for summary judgment because material factual disputes exist (notably the reason for the endorsement and causation of loss), s11 Insurance Law Reform Act 1977 may apply if the insured proves loss was not caused or contributed to by excluded events, and the fourth defendants' third party notice is valid because Onyx's negligence could be a concurrent cause connected to plaintiffs' claims.

Court Disposition

application by Vero for summary judgment and striking out third party claim dismissed; third party claim against Vero stands; costs reserved

Orders

  • Vero's application for summary judgment under HCR r136(2) dismissed
  • Vero's application to strike out the fourth defendants' third party claim under HCR r186 dismissed