Auckland Council v Abraham - [2015] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003259 [2015] NZHC 622

BETWEEN
AUCKLAND COUNCIL

Appellant

AND

WILLIAM FRANCIS ABRAHAM and

SHARRON MARY ABRAHAM First Respondent

NOEL JAMES ABRAHAM Second Respondent

GINO BIANCA Third Respondent

MOJOLIKA LIMITED Fourth Respondent

ALBANY STONE MASONS LIMITED Fifth Respondent

GUY ABRAHAM Sixth Respondent

Hearing: 4 March 2015

Appearances:

D J Barr and N M Thompson for Appellant
No appearance for first respondents (abide decision of the
Court)
T Rea for Plaster Systems Ltd (given leave to withdraw)

Judgment:

31 March 2015

(RESERVED) JUDGMENT OF ANDREWS J

[Appeal against procedural order 10 declining joinder of Plaster Systems Ltd)]

This judgment is delivered by me on 31 March 2015 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

AUCKLAND COUNCIL v ABRAHAM & ORS [2015] NZHC 622 [31 March 2015]

Introduction

[1] The appellant, Auckland Council, is the first respondent in a proceeding in the Weathertight Homes Tribunal (“the Tribunal”). The Council applied to join Plaster Systems Limited (PSL) as a respondent, on the basis that PSL contributed to the damage to the property. In Procedural Order 10 issued on 14 November 2014, the Tribunal (Ms M Roche) declined the application. The Council has appealed against that decision.

[2] The claimants abide the decision of the court. Mr Rea appeared for PSL at the hearing in this Court, but sought leave to withdraw, as he has no instructions. Leave was given. I record Mr Rea’s indication that he can, however, facilitate delivery of this judgment to PSL.

[3] Crucial to this appeal is the Council’s application to adduce evidence on the appeal, being an affidavit by Simon Paykel, a building surveyor.

Background

[4] The proceeding relates to a leaky residential building near Warkworth, constructed with a “Thermaclad” monolithic cladding system. Following construction, in 2004, the property was certified as compliant by the Rodney District Council (now amalgamated into the Auckland Council), save for 14 identified items that required rectification, and producer statements that were to be provided. Those steps were taken and a final re-check requested. However, that was not carried out.

[5] In 2006 the Council advised the claimants that a specialist weathertightness inspection was required, because of the monolithic cladding system. This inspection identified several faults. Targeted repairs were attempted, but revealed significant further weathertightness defects. The claimants undertook significant work to remediate the defects and repair damage.

[6] The claimants claimed in the Tribunal for the costs of remediation and repair, assessed by the Tribunal’s assessor at approximately $1.2 million, plus consequential losses and general damages. The claim named the Council as sole respondent. Since

then, five respondents have been joined. One of those respondents obtained an order for removal, but that order was successfully appealed to this Court.1

[7] On 24 October 2014, the Council applied to join PSL as a respondent on the grounds that it manufactured and supplied the cladding system used in constructing the building, and inspected and provided assurances…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 622
Decision Date: 31 March 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by the Auckland Council against the decision of the Weathertight Homes Tribunal, which declined the Council's application to join Plaster Systems Limited (PSL) as a respondent in a proceeding related to a leaky residential building. The Council sought to join PSL on the grounds that it manufactured and supplied the cladding system used in constructing the building, and had inspected and provided assurances as to the cladding. The Tribunal declined the application, finding that there was an absence of evidence regarding any damage discreetly attributable to PSL, and that a tenable claim had not been established against PSL. The Auckland Council appealed the Tribunal's decision, arguing that the Tribunal incorrectly applied the criteria for joinder in s 111 of the Weathertight Homes Resolution Services Act 2006 and failed to consider relevant evidence. The Court found that the Tribunal failed to take a relevant matter into account and reached a decision that was plainly wrong. The Court allowed the appeal and ordered that PSL be joined as a party to the proceeding.

Orders