Barron v Hutton - [2012] NZHC 2183

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7270 [2012] NZHC 2183

BETWEEN SUSAN PATRICIA BARRON Plaintiff

ANDANTHONY MORRIS HUTTON First Defendant

ANDGRAEME TREVOR STEPHENS AND MARY STEPHENS
Second Defendants

ANDIAG NEW ZEALAND LIMITED Third Defendant

ANDFORENSIC AND INDUSTRIAL SCIENCE LIMITED
Fourth Defendant

ANDNICHOLAS GARTH POWELL Fifth Defendant

Hearing: 30 & 31 July 2012

Appearances: N Woods for Plaintiff
R O Parmenter for Second Defendant
P Smith for Third Defendant
B P Rooney for Fourth and Fifth Defendant

Judgment: 30 August 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on
30.08.12 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Counsel:

Date……………

Rice Craig, Papakura – Neville.woods@ricecraig.co.nz
Mr R Parmenter, Barrister, P O Box 1052, Shortland Street, Auckland – ray@parmenter.co.nz
Fortune Manning, P O Box 4138, Auckland – paul.smith@fortunemanning.co.nz
Mr B Rooney, Barrister, P O Box 3320, Auckland - brian@rooney.co.nz

BARRON V HUTTON & ORS HC AK CIV-2010-404-7270 [30 August 2012]

Background

[1] There are before the Court the following applications:

a) By the second defendants:

i) Summary judgment and/or strike out;

ii) Security for costs; and

iii) Extension of time for discovery and inspection;

b) By the third defendant:

i) Leave to apply for security for costs;

ii) Security for costs;

iii) Leave to apply for summary judgment;

iv) Summary judgment and/or strike out of the plaintiff’s claim;

v) Extension of time for completion of discovery.

c) By the fourth and fifth defendants:

i) Dismissing the first plaintiff’s claim;

ii) Security for costs;

iii) Extension of time for completion of discovery and inspection.

[2] The proceeding is concerned with the claim which the plaintiffs have made that the company that is now in liquidation, Auckland Carpet Steam ‘N Dry Cleaning Ltd (“ACSD”), which provided services by way of insect spraying and carpet cleaning for domestic users, treated the property of the plaintiffs in December
2006. There is no doubt that damage was done to the house property.

[3] The plaintiffs obtained a partial payment from the third defendant, IAG New Zealand Ltd, which was the insurer under the plaintiffs’ house and contents policy. However, the first plaintiff, Mrs Barron, considers that the house was more extensively damaged than is recognised in the payment that she received from IAG and has sued it seeking additional compensation. Mrs Barron says that the house is contaminated so badly that it needs to be demolished and replaced. She is also suing personally the directors of ACSD, Mr Graeme Stephens and Mrs Mary Stephens.

Furthermore, she has brought proceedings against the analytical chemist firm, Forensic and Industrial Science Ltd (“FISL”), which the insurance company or its assessor retained to report on the substances which had been sprayed at the property and a director of that firm, Mr Nicholas Powell. In both cases the allegation is that the analytical work was carried out negligently. This is said to have led to loss in the form of the insurance company declining further indemnity, which Mrs…

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.

Continue reading Barron v Hutton

Details

AGLC: Barron v Hutton [2012] NZHC 2183
Case: [2012] NZHC 2183
Decision Date: 30 August 2012

CaseChat Overview and Summary

In Barron v Hutton, the plaintiff, Susan Barron, sued several defendants for damages arising from alleged negligent insect spraying of her property. The defendants included the company that provided the insect spraying services, its directors, the insurer of the property, and an analytical chemistry firm that tested the property for contaminants. The court considered various applications, including summary judgment and security for costs. The court dismissed the summary judgment applications, finding that the claims against the directors and analytical chemistry firm had sufficient merit to proceed to trial. The court granted the security for costs applications, ordering the plaintiff to provide $100,000 in security for costs, payable in two instalments before the trial commenced. The court found that the plaintiff's claims were not strong, but also not so weak that she had negligible chances of success, and that the defendants would likely incur significant costs if the plaintiff were to fail.

Orders