Auckland Council v The Weathertight Homes Tribunal HC Auckland CIV 2011-404-005656

[2011] NZHC 1227

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-005656

UNDER  Part 1 of the Judicature Amendment Act

1972

IN THE MATTER OF     the Weathertight Homes Resolution

Services Act 2006

AND IN THE MATTER OF of a Procedural Order issued by the

Weathertight Homes Tribunal

BETWEEN  AUCKLAND COUNCIL Plaintiff

ANDTHE WEATHERTIGHT HOMES TRIBUNAL

First Defendant

AND  BODY CORPORATE 314626

Second Defendant

ANDXIAN YING CHEN Third Defendant

ANDKEGEN CHEN RONG WU

Fourth Defendants

ANDJINQUIANG CHEN Fifth Defendant

ANDTECT MIN NG MUI FAH NG Sixth Defendants

ANDBEI GENG WANG Seventh Defendant

ANDSHUQING ZHANG ZHENG HONG WU YAJUN ZHU

Eighth Defendants

Hearing:         19 October 2011

AUCKLAND COUNCIL V THE WEATHERTIGHT HOMES TRIBUNAL & Ors HC AK CIV 2011-404-

005656 19 October 2011

Appearances: D J Barr for the Plaintiff

No appearance for the Defendants

Judgment:      19 October 2011

[1]      The    Auckland    Council    has    commenced    proceedings    under    the Judicature Amendment  Act  1972.    The  proceedings  concern  a  procedural  order issued by the first defendant, the Weathertight Homes Tribunal, in the course of a leaky building claim in relation to a 10-unit development in Epsom.

[2]      The Auckland Council is a respondent in the Tribunal proceedings.   The second defendant in those proceedings is the Body Corporate, and the third to eighth defendants are proprietors of six of the 10 units.

[3]      During  the  preliminary  stages  of  the  Tribunal  proceedings,  the  Council alleged that the third to eighth defendants had withdrawn, terminated, or otherwise discontinued their claim against the Council.  The Tribunal held that the claims by the third to eighth defendants had not been withdrawn.

[4]      In these proceedings, the Council has sought a review of that order, broadly on the basis that:

a)        the Council was not given an opportunity to argue its case, and

b)the Tribunal erred in law in holding that the claims for the third to eighth defendants had not been withdrawn.

[5]      In the event, matters have rather overtaken these proceedings because the third to eighth defendants have now made an application to rejoin the  Tribunal proceedings,  while reserving their rights to argue that such application  was not necessary.  The Council does not oppose that application.

[6]      There is some dispute as to whether or not the Weathertight Homes Tribunal was served with these proceedings.  I do not however need to resolve that dispute today because the Acting Jurisdiction Manager of the Tribunal has sent an email to the Court recording that the Tribunal does not oppose the making of the orders sought by the plaintiff.   Further, I have received a signed memorandum recording that counsel for the second to eighth defendants does not oppose the making of the orders.

[7]      Accordingly, I order as follows:

a)       I set aside the order made by the Tribunal at [2] in Procedural Order 2 that the claims in respect of the six proprietor units were not withdrawn.

b)I  direct  that  whether  the  claims  were  withdrawn,  terminated,  or otherwise discontinued, is a matter to be determined by the Tribunal based on the hearing of evidence and submissions in the course of the Tribunal proceedings.

c)       I   direct   the   date   upon   which   the   Tribunal   proceedings   were commenced for the purpose of limitation defences is a matter to be determined by the Tribunal based on the hearing of evidence and submissions in the course of the Tribunal proceedings.

d)       I direct that costs are to lie where they fall.

Wylie J

Distribution:

D J Barr: [email protected]
GDR Shand: [email protected]