Auckland Council v Blincoe

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-007499 [2012] NZHC 2023

BETWEEN  AUCKLAND COUNCIL Appellant

ANDHERBERT JAMES BLINCOE & ORS First Respondent

ANDHUGHES & TUKE CONSTRUCTION LIMITED

Second Respondent

Hearing:         16 May 2012

Appearances: P A Robertson for Appellant

G M Illingworth QC for Respondents

Judgment:      13 August 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 13 August 2012 at 12 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Heaney & Co, P O Box 105391, Aucklnad

Fax: [phone] – P Robertson – Email: [e-mail]
Martelli McKegg, P O Box 5745 Wellesley Street, Auckland 1141
Fax: [phone]

Counsel:             G M Illingworth QC, P O Box 7205, Auckland 1141

Fax: [phone] – Email: [e-mail]

AUCKLAND COUNCIL V BLINCOE & ORS HC AK CIV-2011-404-007499 [13 August 2012]

Introduction

[1]      The Auckland City Council appeals a decision of the Weathertight Homes Tribunal in relation to nine units that were “leaky buildings”.1     The adjudicator concluded that there were defects in the construction of the units that had allowed water ingress and resulted in damage to the properties.  It is accepted that there were defects in the construction of the units, three of which were sufficiently serious to require remedial work.  These were the improper installation of the window joinery

(defect one) which would, on its own, have required the units to be reclad; the failure to install stucco plaster cladding high enough behind the timber fascia and barge boards (defect two); and a lack of clearance between the bottom of the stucco plaster cladding and ground (defect three).

[2]      The adjudicator found that the Council had failed either to notice the defects or ensure that they were corrected and had, therefore, failed to meet the standard of care required of it when issuing Code Compliance Certificates.  The adjudicator also determined that the Council had made out the defence of contributory negligence in respect of one claimant, Susan Brown, and reduced her damages award.

[3]      The appeal is brought under s 93(1) of the Weathertight Homes Resolution Services Act 2006 (WHRSA 2006) which allows a party to a claim that has been determined by the Tribunal to appeal on a question of law or fact arising from the determination.   The appeal is determined by way of rehearing.2    The approach to such an appeal is as explained in Austin, Nichols & Co Inc v Stichting Lodestar, namely that the appellant must show that the first instance judge or tribunal was wrong and  if  it  does  so  the appellate court  must  carry out  its  own assessment including, if appropriate, substituting its own findings of fact.3

[4]      In respect of the finding that the Council had negligently failed to react to the three defects, the Council asserts error by the adjudicator in:

1 BOAC v Auckland City Council [2011] NZWHT Auckland 50, 51, 52, 53, 54, 55, 56 and 57.

2 High Court Rules, r 20.18.

3 Austin, Nichols…