New Zealand Case Law: Decisions & Judgments

Topic

Duty to warn

Legal area

Court

14 Sept 2022

BODY CORPORATE NUMBER DPS 91535 v 3A COMPOSITES GmbH [2022] NZHC 2355

Citation

[2022] NZHC 2355
Court

High Court

The application for representative orders was dismissed because the plaintiffs failed to demonstrate sufficient commonality and that the proposed common issue (particularly the allegation that Alucobond PE/Plus are inherently incapable of meeting the Building Code) was a substantial and proportionate basis for representative treatment across the proposed class. The applicants provided inadequate particulars about the intended represented group and their cladding, relied on a potentially contrived, overbroad 'inherent incapability' theory rather than building-specific code assessments, and did…
11 Aug 2021

CRIDGE v STUDORP LIMITED [2021] NZHC 2077

Citation

[2021] NZHC 2077
Court

High Court

Court found that while manufacturers of cladding owe a duty of care to homeowners, the plaintiffs failed to establish that Harditex or the Harditex system was inherently defective or unfit for purpose; comprehensive building science evidence (drainage/drying behaviour, decay resistance) and testing did not support the homeowners' primary causation theory; many failures were attributable to design choices, deficient site workmanship, non-compliance with standards and maintenance deficits; JHTIs (from 1991 and especially 1998) were not shown to be so inadequate as to constitute a breach; Fair T…
12 May 2021

WAITAKERE GROUP LTD v JAMES HARDIE NEW ZEALAND LTD [2021] NZHC 1052

Citation

[2021] NZHC 1052
Court

High Court

The court held that interrogatories asking categorical yes/no questions about whether specific testing of Harditex and Monotek occurred were relevant and necessary and not unduly burdensome, but excluded and refused to order answers to interrogatories that were open-ended, ambiguous or amounted to de-facto discovery (notably requests for documentary listings or for 'who conducted' tests and 'results' which may require expert interpretation). Leave to amend interrogatory 188 (clerical date error) was granted; amendment/answering of interrogatory 247 was adjourned and timetabled. Specific inter…
16 Apr 2019

JAMES HARDIE INDUSTRIES PLC v KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1 [2019] NZSC 39

Citation

[2019] NZSC 39
Court

Supreme Court

The Supreme Court refused leave because it was not necessary in the interests of justice to determine the interlocutory questions before trial: the issues raised involved mixed questions of law and fact requiring fuller evidence, the operating companies remained proper parties so JHI suffered little prejudice in remaining a party, complex interlocutory resolution would be artificial and disproportionate, and the disputed questions could be addressed on appeal after final determination.
31 Oct 2018

WHITE v JAMES HARDIE NEW ZEALAND [2018] NZHC 2812

Citation

[2018] NZHC 2812
Court

High Court

Court ordered limited but specific discovery: defendants must produce customer complaints files (Category D) excluding litigation or settlement materials; plaintiffs must produce for all plaintiffs agreed categories 5 (Weathertight Homes Assessors' Reports), 8 (Financial Assistance Package documents) and 6 (other expert reports); site visit and customer-advice discovery and insurance/agency/licensing discovery were adjourned pending review or Court of Appeal outcomes; parties' experts must caucus to agree a fair sample of properties for full discovery across agreed categories and parties may…
22 Dec 2016

ANDREWS PROPERTY SERVICES LIMITED V BODY CORPORATE 160361 [2016] NZCA 644

Citation

[2016] NZCA 644
Court

Court of Appeal

The Court of Appeal allowed the appeal in part: it held clause 1.0 remained an express inspection obligation assumed by Babbage and not by APS, and APS did not owe the owners the tortious duty to ensure or compel Babbage to perform that contractual survey (the High Court finding of APS liability for failing to ensure the survey was set aside). However APS breached the specification/implicit workmanlike obligation by failing to obtain required fixing details (clearance holes) and thus breached an implied duty in installing the Eterpan panels; APS's producer statement was misleading insofar as…
29 Jul 2016

CARTER HOLT HARVEY LIMITED v MINISTER OF EDUCATION [2016] NZSC 95

Citation

[2016] NZSC 95
Court

Supreme Court

On the pleaded facts the negligence and duty to warn causes were arguable and should not be struck out; the negligent misstatement cause had been wrongly struck out and is reinstated; and Building Act 2004 s393 longstop does not apply to civil proceedings against a manufacturer/supplier founded on negligent design, manufacture or supply of defective building products because those proceedings do not, on their face, 'relate to building work' as defined in the Act; resolution of proximity and policy issues requires trial adjudication.
12 Sept 2012

SWORDFISH CO LIMITED V BULLER DISTRICT COUNCIL HC GRY CIV 2011-418-000143

Citation

openlaw-2ef39bb6_4635_42ca_817b_b6039fa63656.pdf
Court

High Court

On the pleaded facts damage was reasonably foreseeable and there is a prima facie proximity between the Council and subsequent purchasers grounded in the statutory scheme ss221-224 RMA; policy and public‑law considerations are significant but cannot be resolved on strike out without evidence of council processes and practical consequences, therefore the strike out was correctly refused and the case must proceed to trial to determine whether a duty of care should be imposed.
3 Mar 2009

MONASTERIO AND MOYA V BUJAK AND ORS HC CHCH CIV 2008-409-001901

Citation

openlaw-26962066_03af_4559_8b76_eb7123e33ceb.pdf
Court

High Court

The substituted service order was set aside because plaintiffs had not demonstrated reasonable efforts to locate and serve the second defendant in Poland; leave granted to reapply provided plaintiffs first authorise Polish lawyers to check the Ministry registry. The Mareva freezing orders were not set aside because extradition posed a real risk assets could be removed and there was a good arguable case of deceit and negligence; however the freezing orders must be amended to a 'light‑handed' form to permit reasonable living and litigation expenses and to avoid disproportionate restraint on pro…
3 May 2006

POU V BRITISH AMERICAN TOBACCO (NZ) LTD & ANOR HC AK CIV-2002-404-1729

Citation

openlaw-5605b483_97cd_4d9d_ab9c_a5f8dc1db78e.pdf
Court

High Court

No liability: court found no enforceable duty to cease manufacture; while a prima facie duty to warn could be recognised, it was negated because the dangers of smoking (including difficulty of quitting) were common knowledge by 1968 and, on the facts, the deceased herself would have known; causation not established (Wills' product did not materially cause cancer; BAT not shown to have caused decision to start/continue smoking) and any initial breach was superseded by the deceased's informed continuation of smoking; plaintiffs' claim dismissed.