Auckland Council v Abraham - [2015] NZHC 415

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2685 [2015] NZHC 415

UNDER
the Weathertight Homes Resolution

Services Act 2006

IN THE MATTER

of an appeal from a decision of the
Weathertight Homes Tribunal

BETWEEN

AUCKLAND COUNCIL Appellant

AND

WILLIAM FRANCIS ABRAHAM and

SHARRON MARY ABRAHAM First Respondent

NOEL JAMES ABRAHAM Second Respondent

GINO BIANCA Third Respondent

MAJOLIKA LTD Fourth Respondent

ALBANY STONEMASONS LTD Fifth Respondent

GUY ABRAHAM Sixth Respondent

Hearing: 19 February 2015

Counsel:

D J Barr for Appellant
K A Young for Fifth Respondent

Judgment:

10 March 2015

JUDGMENT OF BREWER J

AUCKLAND COUNCIL v ALBANY STONEMASONS [2015] NZHC 415 [10 March 2015]

This judgment was delivered by me on 10 March 2015 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Introduction

[1] Auckland Council (“the Council”) is defending a leaky home claim before the Weathertight Homes Tribunal (“the Tribunal”). On 18 September 2014, the Tribunal granted the fifth respondent’s (“Albany Stonemasons”) application to be removed as a respondent in the proceedings.1 The Council appeals that decision. It wants Albany Stonemasons to stay in the case to preserve the possibility of sharing with Albany Stonemasons any liability which might accrue to the Council.

The Tribunal’s decision

[2] The Tribunal removed Albany Stonemasons from the proceedings pursuant to s 112 of the Weathertight Homes Resolution Services Act 2006 (“the Act”):

112 Removal of party from proceedings

(1) The tribunal may, on the application of any party or on its own initiative, order that a person be struck out as a party to adjudication proceedings if the tribunal considers it fair and appropriate in all the circumstances to do so.

(2) This section is subject to section 57(2).2

[3] The Tribunal found it was fair and appropriate in all the circumstances to remove Albany Stonemasons because:

(a) Albany Stonemasons can be liable only if it is responsible for the failure to fix a sill flashing to joinery installed to a schist wall.

(b) Albany Stonemasons denies responsibility for the installation of the
flashing and “this dispute cannot be resolved on the information currently before me”.

1 Procedural Order 8.
2 Section 57(2) provides: “In managing adjudication proceedings, the tribunal must comply with the principles of natural justice”.

(c) The Council’s expert’s view is that the cost of remedying the defect is

$10,000 to $15,000. This represents, at most, one to one and a half percent of the repair cost.

(d)It would appear that any liability Albany Stonemasons has for this defect is likely to be shared with other parties such as the Council and the joinery installer.

(e) The majority of Albany Stonemason’s work was completed prior to

26 November 2002, which is the cut off date for limitation purposes. It is uncertain whether the sill flashing defect was created before or after 26 November 2002, and this would need to be determined at a hearing. But since the majority of the work was completed before
26 November, the sill flashing defect may be found…

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 415
Decision Date: 10 March 2015

CaseChat Overview and Summary

Auckland Council is appealing a decision of the Weathertight Homes Tribunal, which removed Albany Stonemasons from a leaky home claim. The Council argues that Albany Stonemasons should remain in the proceedings to preserve the possibility of sharing any liability that might accrue to the Council. The Tribunal removed Albany Stonemasons from the proceedings under s 112 of the Weathertight Homes Resolution Services Act 2006, which allows the Tribunal to order the removal of a party if it considers it fair and appropriate in all the circumstances to do so. The Tribunal found it was fair and appropriate to remove Albany Stonemasons because its liability, if any, would be minimal in the context of the case and the cost of keeping it in the proceedings would be disproportionate to its liability. The Council argues that the Tribunal erred in its assessment of the evidence and in its consideration of certain factors. The Court found that the Tribunal made several errors in its assessment of the evidence and in its consideration of certain factors, such as the uncertainty of the evidence and the disproportionality of the costs to Albany Stonemasons. The Court found that the Tribunal should not have concluded it was fair and appropriate in all the circumstances to remove Albany Stonemasons as a party. The Court allows the appeal and quashes the order for removal, and Albany Stonemasons will continue, at least for the time being, as a party to the proceedings. The Court awards costs to the Council on a 2B basis.

Orders