HELLABY RESOURCE SERVICES LTD v BODY CORPORATE 197281 [2021] NZHC 1329

HELLABY RESOURCE SERVICES LTD v BODY CORPORATE 197281 [2021] NZHC 1329

The strike out applications were dismissed. The court held the applications had become moot because the plaintiff's original claim was determined by summary judgment, leaving the counterclaim as an independent proceeding; furthermore, on the merits the counterclaims against the engineer and adviser were sufficiently connected to the factual matrix of the remediation works to justify their continuation in the proceeding under the overriding objectives of the High Court Rules.

Citation
[2021] NZHC 1329
Parties
First Plaintiff / Fourth Counterclaim Defendant: Hellaby Resource Services Limited; Second Plaintiff / First Counterclaim Defendant: SRG Global Remediation Services (NZ) Limited; Defendant / Counterclaim Plaintiff: Body Corporate 197281; Second Counterclaim Defendant: Maynard Marks Limited; Third Counterclaim Defendant: HOBANZ Project Assist Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 June 2021
Procedural Posture
Construction Contract Debt and Counterclaim (weathertightness Remediation) / Interlocutory Applications to Strike Out; Summary Judgment Entered on Plaintiff's Claim; Counterclaim Remains Pending
Outcome
Interlocutory applications by Maynard Marks and HOBANZ to strike out the Body Corporate's counterclaim dismissed
Legal Topics
Summary Judgment, Strike Out Application, Counterclaim Jurisdiction Under High Court Rules, Construction Contracts Act S79 (statutory Debt), Fair Trading Act S9, Remediation Costs and Liability
Construction Law Contract Law Tort — Negligence Building Law and Regulatory Compliance Civil Procedure Summary Judgment Strike Out Application Counterclaim Jurisdiction Under High Court Rules +3 more

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Parties

Hellaby Resource Services Limited

First Plaintiff / Fourth Counterclaim Defendant

SRG Global Remediation Services (NZ) Limited

Second Plaintiff / First Counterclaim Defendant

Body Corporate 197281

Defendant / Counterclaim Plaintiff

Maynard Marks Limited

Second Counterclaim Defendant

HOBANZ Project Assist Limited

Third Counterclaim Defendant

Procedural Posture

Construction Contract Debt and Counterclaim (weathertightness Remediation) / Interlocutory Applications to Strike Out; Summary Judgment Entered on Plaintiff's Claim; Counterclaim Remains Pending

Legal Issues

  1. 1 Whether the counterclaim against non-plaintiff parties (engineer and adviser) is related or connected to the original subject matter of the proceeding under High Court Rules r 5.57
  2. 2 Whether relief sought by the Body Corporate (including lost opportunity to demolish and rebuild) is connected to plaintiff's claim for a statutory debt under the Construction Contracts Act
  3. 3 Whether it is appropriate to strike out the counterclaim or to require separate proceedings

Ratio Decidendi

The strike out applications were dismissed. The court held the applications had become moot because the plaintiff's original claim was determined by summary judgment, leaving the counterclaim as an independent proceeding; furthermore, on the merits the counterclaims against the engineer and adviser were sufficiently connected to the factual matrix of the remediation works to justify their continuation in the proceeding under the overriding objectives of the High Court Rules.

Court Disposition

Interlocutory applications by Maynard Marks and HOBANZ to strike out the Body Corporate's counterclaim dismissed

Orders

  • Interlocutory application by Maynard Marks to strike out the counterclaim dismissed
  • Interlocutory application by HOBANZ Project Assist Limited to strike out the counterclaim dismissed