BODY CORPORATE 204464 AND ANOR V WAITAKERE CITY COUNCIL AND ORS HC AK CIV-2008-404-007428

BODY CORPORATE 204464 AND ANOR V WAITAKERE CITY COUNCIL AND ORS HC AK CIV-2008-404-007428

Section 120 does not require prior establishment of an eligible claim, but on the facts the Court declined to transfer because, weighing all factors, transfer was not in the best interests of justice: plaintiffs would forfeit substantive rights and costs recovery and face procedural uncertainties and an unfinalised government scheme, whereas the Tribunal's benefits and joinder/third-party capabilities were untested for complex multi-party claims of this scale.

Citation
openlaw-d3632952_f771_4b4a_9794_daf7834fff21.pdf
Parties
First Plaintiff: Body Corporate 204464; Second Plaintiffs: Gaylene Yvonne Backhouse & Ors; First Plaintiff (proceeding CIV 2009 404 002124): Body Corporate 204474; Second Plaintiffs: May Elizabeth von Dinklage & Ors; First Defendant: Waitakere City Council; Second Defendant: Arrow International Limited; Third/fourth Defendant: Simon Kenneth Holloway; Third Defendants (civ 2009): Kris Inglis & Karl Adlam; Fifth Defendant (civ 2009): Daryn Peter McDonald; Second Third Party / First Third Party: David James Foster & Ors; Third Third Party: Vero Insurance New Zealand Limited; Fourth Third Party: QBE Insurance (International) Limited; Second Third Party (civ 2009): Headland Holdings Limited; Third Third Party (civ 2009): Plaster Options Limited; Fifth Third Party (civ 2009): James Hardie New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 December 2010
Procedural Posture
Consolidated Civil Proceedings for Building Defects (leaky Building) / Interlocutory Application to Transfer Proceedings to Weathertight Homes Tribunal Under S120 of the Weathertight Homes Resolution Services Act 2006
Outcome
Application by Arrow International Limited to transfer proceedings to the Weathertight Homes Tribunal declined.
Legal Topics
Transfer to Adjudication, Eligibility for Tribunal, Limitation Periods, Jurisdictional Scope of Tribunal, Costs and Procedure, Multi Party Joinder
Weathertight Homes Resolution Services Act Civil Procedure Construction Law Property Law Administrative Law Transfer to Adjudication Eligibility for Tribunal Limitation Periods +3 more

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Parties

Body Corporate 204464

First Plaintiff

Gaylene Yvonne Backhouse & Ors

Second Plaintiffs

Body Corporate 204474

First Plaintiff (proceeding CIV 2009 404 002124)

May Elizabeth von Dinklage & Ors

Second Plaintiffs

Waitakere City Council

First Defendant

Arrow International Limited

Second Defendant

Simon Kenneth Holloway

Third/fourth Defendant

Kris Inglis & Karl Adlam

Third Defendants (civ 2009)

Daryn Peter McDonald

Fifth Defendant (civ 2009)

David James Foster & Ors

Second Third Party / First Third Party

Vero Insurance New Zealand Limited

Third Third Party

QBE Insurance (International) Limited

Fourth Third Party

Headland Holdings Limited

Second Third Party (civ 2009)

Plaster Options Limited

Third Third Party (civ 2009)

James Hardie New Zealand Limited

Fifth Third Party (civ 2009)

Procedural Posture

Consolidated Civil Proceedings for Building Defects (leaky Building) / Interlocutory Application to Transfer Proceedings to Weathertight Homes Tribunal Under S120 of the Weathertight Homes Resolution Services Act 2006

Legal Issues

  1. 1 Whether the High Court may order transfer under s120 where the plaintiffs have not established an eligible claim
  2. 2 Whether transfer is in the best interests of justice after balancing benefits of the government leaky homes scheme against loss of substantive and procedural rights
  3. 3 Whether the Tribunal has jurisdiction to award remedies for non-weathertightness defects

Ratio Decidendi

Section 120 does not require prior establishment of an eligible claim, but on the facts the Court declined to transfer because, weighing all factors, transfer was not in the best interests of justice: plaintiffs would forfeit substantive rights and costs recovery and face procedural uncertainties and an unfinalised government scheme, whereas the Tribunal's benefits and joinder/third-party capabilities were untested for complex multi-party claims of this scale.

Court Disposition

Application by Arrow International Limited to transfer proceedings to the Weathertight Homes Tribunal declined.

Orders

  • Second defendant Arrow International Limited to pay the plaintiffs' costs of the application on a category 2 band B basis.