Auckland Council v Gormly - [2013] NZHC 721

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-006768 [2013] NZHC 721

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

ANDNIGEL CHARLES GORMLY AND SUZANNE MARIE GORMLY AND MACKY TRUSTEE COMPANY LIMITED AS TRUSTEES FOR THE MOTUIHE TRUST
First Respondents

ANDGRAEME JOHN ENDERBY AND HELEN ANNE ENDERBY
Second Respondents

ANDROBERT GERADES MEDEMBLIK Third Respondent

ANDWAYNE DAVID MARTIN Fourth Respondent

ANDCHRIS DOIDGE BUILDERS LIMITED Fifth Respondent

Hearing: 11 April 2013

Appearances: D J Barr and K Lydiard for the Appellant
No appearance by or on behalf of Any Other Party

Judgment: 11 April 2013

ORAL JUDGMENT OF WOOLFORD J

AUCKLAND COUNCIL V GORMLY & ORS HC AK CIV 2012-404-006768 [11 April 2013]

Introduction

[1] On 12 October 2012, the Weathertight Homes Tribunal allowed an application made by the Auckland Council (the Council) to join Chris Doidge Builders Limited as a respondent to weathertightness proceedings brought by The Motuihe Trust against it and a number of other respondents in respect of a property situated at 67A Edmund Street, St Heliers. In the same procedural ruling, made without hearing from the parties, the Tribunal refused applications to join Christopher Doidge personally as well as Chenery Contracting Limited (Chenery), Nicks Timber Joinery Limited and Fairview Window Solutions Limited as respondents.

[2] The Council now appeals against the dismissal of its application to join

Mr Doidge and Chenery.

Legal Principles

[3] For a party to be joined to proceedings when filed, it is only necessary to name that party on the application for adjudication.1 Section 111(1) of the Weathertight Homes Resolution Services Act 2006 (the Act) provides for joinder of parties after an application is filed. It provides:

(1) The tribunal may order that a person be joined as a respondent in adjudication proceedings if it considers that—

(a) the person ought to be bound by, or have the benefit of, an order of the tribunal; or

(b) the person's interests are affected by the proceedings; or

(c) for any other reason it is desirable that the person should be joined as a respondent.

[4] In Thomson v Christchurch City Council2 Gendall J stated at [33]:

Clearly if there is no tenable evidence of factual foundation put before the Adjudicator to provide some support for a cause of action against an intended party then joinder would be inappropriate.

1 Section 62 of the Weathertight Homes Resolution Services Act 2006.
2 Thomson v Christchurch City Council HC Christchurch CIV-2010-409-2298, 28 March 2011.

[5] In Thomson, Gendall J also gave some consideration to whether the approach to a joinder application should be the same as an application to strike-out a person as a party to the proceeding, but in the circumstances of this case, I do not think it is necessary for me to go beyond the plain wording of s 111(1) of the Act.

Weathertight Homes Tribunal decision

[6] In its decision, the Tribunal referred to…

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: [2013] NZHC 721
Decision Date: 11 April 2013

CaseChat Overview and Summary

The Auckland Council appeals against a decision of the Weathertight Homes Tribunal, which allowed an application to join Chris Doidge Builders Limited as a respondent to weathertightness proceedings but refused to join Mr Doidge personally, Chenery Contracting Limited, Nicks Timber Joinery Limited and Fairview Window Solutions Limited. The Tribunal’s refusal to join Mr Doidge personally and Chenery was based on the test for joinder under section 111(1) of the Weathertight Homes Resolution Services Act 2006. The test was that a party applying to join a party had to produce “sufficiently compelling evidence to establish that the claim against that party is capable of succeeding”. The Tribunal’s decision was based on the lack of evidence to show that Mr Doidge had done any relevant work and that the cost of remedial work to Chenery was disproportionate to its potential liability. The Court found that the Tribunal’s approach was inconsistent with the test for joinder and the policy of the Act. The Court also found that there was sufficient evidence to warrant the joinder of Mr Doidge personally and Chenery as respondents. The Court allowed the appeal and reversed the decision of the Tribunal, joining Mr Doidge and Chenery as respondents to the adjudication proceedings.

The legal issues in this case were whether the Tribunal correctly applied the test for joinder under section 111(1) of the Weathertight Homes Resolution Services Act 2006 and whether there was sufficient evidence to warrant the joinder of Mr Doidge personally and Chenery Contracting Limited. The Court found that the Tribunal’s approach was inconsistent with the test for joinder and the policy of the Act. The Court also found that there was sufficient evidence to warrant the joinder of Mr Doidge personally and Chenery Contracting Limited as respondents. The Court allowed the appeal and reversed the decision of the Tribunal, joining Mr Doidge and Chenery as respondents to the adjudication proceedings.

Orders