Auckland Council v Staley - [2013] NZHC 2572

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-001753
[2013] NZHC 2572

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

JACQUELINE STALEY

First Respondent

AND

PROPERTY CONCEPTS LIMITED

Second Respondent

Hearing:

25 July 2013

Appearances:

D J Barr and K Lydiad for the Appellant No appearance for the First Respondent M G Locke for the Second Respondent

G K Kohler QC for the Proposed Respondent (N M Lowes)

Judgment:

2 October 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 2 October 2013 at 4.30 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:………………

AUCKLAND COUNCIL v JACQUELINE STALEY [2013] NZHC 2572 [2 October 2013]

Introduction

[1] Auckland Council is a respondent to a claim by Jacqueline Staley in the Weathertight Homes Tribunal relating to her unit, which is one of eight units in a residential development in Parnell, Auckland. The Council applied to the Tribunal to join Nicholas Lowes as a further respondent contending that he was the project manager and supervised the construction of the development. The Council also applied to join Douglas and Chantal Liggins claiming that they were co-developers of the property. The Tribunal declined to join these parties to the proceedings. The Council appeals against that decision.

Grounds of appeal

[2] The Council advances the following grounds in support of its appeal:

(a)the Tribunal applied the wrong test for joinder; and

(b)the Tribunal made errors of fact and law in finding that the Council had not established a basis for joinder of the proposed respondents.

Approach to the appeal

[3] This appeal is brought pursuant to s 93(1) of the Weathertight Homes Resolutions Services Act 2006 which provides:

93 Right of appeal

(1)A party to a claim that has been determined by the tribunal may appeal on a question of law or fact that arises from the determination.

[4] It is well settled that an appeal can be pursued under this section from a decision declining to join a party to proceedings.

[5] The appeal is to be determined in accordance with the approach directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar:1

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

Did the Tribunal apply the correct test for joinder?

[6] Section 111 of the Act deals with joinder of parties. It relevantly provides:

111 Joinder of parties

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

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 2572
Decision Date: 2 October 2013

CaseChat Overview and Summary

In Auckland Council v Staley, the High Court of New Zealand considered an appeal brought by the Auckland Council against a decision of the Weathertight Homes Tribunal. The Council sought to join additional parties, including Nicholas Lowes, Douglas and Chantal Liggins, to a claim brought by Jacqueline Staley regarding defects in her unit within a residential development in Parnell, Auckland. The primary legal issues were whether the Tribunal applied the correct test for joinder of parties and whether the Tribunal made errors in its factual and legal findings in declining to join the proposed respondents.

The court examined the statutory framework under the Weathertight Homes Resolution Services Act 2006, particularly section 111, which outlines the criteria for joining parties. The Council argued that the Tribunal applied an incorrect test for joinder, contending that the test should be less stringent than previously held. The court found that the Tribunal, while not articulating the test perfectly, had applied the correct legal standard as established in previous cases such as Dennerly and Thomson. The court concluded that the test for joinder requires tenable evidence supporting the claim against the proposed party, rather than compelling evidence.

Regarding the specific proposed respondents, the court agreed with the Tribunal's findings that there was insufficient tenable evidence to support the Council's claims. The evidence did not substantiate that Nicholas Lowes was the project manager and construction supervisor, nor did it demonstrate that Douglas and Chantal Liggins were co-developers of the property. The court held that the Tribunal was correct in declining to join these parties, as the Council had not established a factual foundation for their inclusion.

Lastly, the court rejected the Council's argument that the Tribunal breached natural justice by not allowing further evidence to be presented. The court found no procedural unfairness, as the Council was aware that the application for joinder would be decided on the papers and had the opportunity to present its case accordingly.

The appeal was dismissed, and the Council was ordered to pay the costs of the appeal.

Orders