Hearing:	28 November 2013
Court:	O'Regan P, Stevens and Miller JJ
Counsel:	J N Bierre and D J MacRae for Applicants G M Brodie for Respondent
Judgment:	19 December 2013 at 4 pm

JUDGMENT OF THE COURT

AThe application for review of the Associate Judge’s decision is allowed.
BThe order setting aside the third party notices issued by the applicants is quashed and the third party notices are reinstated.
C The costs order made by the Associate Judge is quashed. In the absence of agreement, costs should be redetermined by the Associate Judge in light of this judgment.
DThe respondent must pay costs to the applicants calculated on the same basis as for a standard appeal to this Court on a band A basis plus usual disbursements. For the avoidance of doubt only one set of costs and disbursements is payable. We certify for two counsel.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

In this judgment, we deal with an application under s 26P of the Judicature Act 1908 and r 2.3 of the High Court Rules to review a decision of Associate Judge Matthews.[1] The application was transferred to this Court for hearing under s 64 of the Judicature Act by Fogarty J.[2] The case therefore involves this Court exercising the High Court’s jurisdiction under s 26P, under which the High Court is required to review the decision to which the application for a review relates and “make such order as may be just”.[3] Under r 2.3(4) of the High Court Rules, the review proceeds as a rehearing of the proceedings to which the decision under review relates.

Background

[1]Grey District Council v Blain [2013] NZHC 522 [High Court judgment].

[2]Grey District Council v Blain [2013] NZHC 976.

[3]Judicature Act 1908, s 26P(1).

The decision under review was an interlocutory application made by the respondent, Evan Jones Construction Ltd (EJCL) to have third party notices issued by the applicants set aside.
The underlying High Court proceeding is an action commenced by the Grey District Council (the Council) against the applicants for damages arising out of their respective roles in relation to the construction of an aquatic centre in Greymouth.
The Council entered into a construction contract with EJCL (the third party in the High Court proceeding) for the construction of the aquatic centre. The Council also entered into a design and construction administration contract with the third applicant (the fifth defendant in the High Court), LHT Design Ltd (LHT). LHT trades as LHT Engineering Solutions, and is an engineering consultancy.
LHT engaged the first applicants, (the first and second defendants respectively in the High Court), Mr Blain and Kevin O’Connor & Associates Ltd (KOA) to provide an independent review of part of…

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 Blain v Evan Jones Construction Ltd

Details

AGLC: Blain v Evan Jones Construction Ltd [2013] NZCA 680
Case: [2013] NZCA 680
Decision Date: 19 December 2013 at 4 pm

CaseChat Overview and Summary

Blain v Evan Jones Construction Ltd involved an application to review a decision of an Associate Judge in the High Court of New Zealand, setting aside third party notices issued by the applicants in relation to an underlying proceeding concerning the construction of an aquatic centre in Greymouth. The applicants were seeking to join Evan Jones Construction Limited (EJCL) as a third party in the underlying proceeding. EJCL had applied to have the third party notices set aside. The applicants argued that it was at least arguable that the law recognises a cause of action in negligence against the builder of a commercial building, that the terms of the contract between the Council and EJCL were consistent with EJCL owing a duty of care in tort to the Council, and that the Construction Contracts Act 2002 was not relevant to the existence of a duty of care in tort owed by EJCL to the Council. The Court concluded that the order setting aside the third party notices ought not to have been made and allowed the application for review, quashing the order and reinstating the third party notices. The Court also quashed the costs order made by the Associate Judge and awarded costs to the applicants on the same basis as for a standard appeal to the Court, plus usual disbursements.

Orders