BODY CORPORATE 314950 & ORS V JAMES HARDIE NZ LTD & ORS HC AK CIV-2012-404-006338

BODY CORPORATE 314950 & ORS V JAMES HARDIE NZ LTD & ORS HC AK CIV-2012-404-006338

Leave was granted to join Allianz as a third party under s9 Law Reform Act because James Hardie established a prima facie case against the insolvent main contractor (given the timing of alleged breaches up to May 2003 and the issuance of the Code Compliance Certificate on 11 April 2003), there was prima facie...

Source-derived case information.

Citation
openlaw-09021292_54e3_4930_b670_2a364e684ebc.pdf
Parties
First Plaintiff: BODY CORPORATE 314950; Second Plaintiffs: CHOR KOK PHUA & ORS; First Defendant: JAMES HARDIE NEW ZEALAND LIMITED; Second Defendant: STUDORP LIMITED; Third Defendant: GEORGE CLARKE; Fourth Defendant: ROBERT GRANT CUNNINGHAM; Proposed Third Party: Allianz (insurer)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 April 2013
Procedural Posture
Civil Building Defects / Leaky Building / Interlocutory Urgent Without‑notice Application to Join Insurer as Third Party Under S9 Law Reform Act; Early Procedural Stage
Outcome
Application granted to join Allianz as third party under s9 Law Reform Act; leave granted to issue third party notice outside specified time and without notice.
Legal Topics
Third Party Notice, Law Reform Act S9 Joinder, Limitation/long Stop (building Act S393), Without Notice Relief (high Court Rules), Prima Facie Requirement for Third Party Joinder, Strike Out Risk
Building Law Tort Contract Insurance Law Civil Procedure Limitation Law Third Party Notice Law Reform Act S9 Joinder +4 more

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Parties

BODY CORPORATE 314950

First Plaintiff

CHOR KOK PHUA & ORS

Second Plaintiffs

JAMES HARDIE NEW ZEALAND LIMITED

First Defendant

STUDORP LIMITED

Second Defendant

GEORGE CLARKE

Third Defendant

ROBERT GRANT CUNNINGHAM

Fourth Defendant

Allianz (insurer)

Proposed Third Party

Procedural Posture

Civil Building Defects / Leaky Building / Interlocutory Urgent Without‑notice Application to Join Insurer as Third Party Under S9 Law Reform Act; Early Procedural Stage

Legal Issues

  1. 1 Whether leave under s9 Law Reform Act should be granted to join insurer as third party
  2. 2 Whether applicant established a prima facie cause of action against the insolvent main contractor (RCCL)
  3. 3 Whether any claim against the main contractor is time‑barred by the Building Act s393 ten‑year long stop or other limitation rules

Ratio Decidendi

Leave was granted to join Allianz as a third party under s9 Law Reform Act because James Hardie established a prima facie case against the insolvent main contractor (given the timing of alleged breaches up to May 2003 and the issuance of the Code Compliance Certificate on 11 April 2003), there was prima facie evidence of a relevant insurance policy, and urgent without‑notice relief was justified to avoid loss of the ability to pursue a third party claim due to the imminent long stop expiry.

Court Disposition

Application granted to join Allianz as third party under s9 Law Reform Act; leave granted to issue third party notice outside specified time and without notice.

Orders

  • Leave granted to issue third party notice under s9 Law Reform Act 1936 against Allianz and to do so outside the specified time and without notice
  • James Hardie to file a statement of claim against Allianz by 5 pm, 10 April 2013