Body Corporate 198900 v Auckland City Council HC Auckland CIV 2006-404-1094
[2010] NZHC 1196
•14 July 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2006-404-001094
BETWEEN BODY CORPORATE 198900
First Plaintiff
ANDNEIL KELVIN DARROCH & OTHERS Second Plaintiffs
ANDAUCKLAND CITY COUNCIL First Defendant
ANDMELVIEW THE QUAYS LIMITED Second Defendant
ANDPEDDLE THORP AITKEN LIMITED Third Defendant
……………/continued
Hearing: 14 July 2010
Counsel: GB Lewis and MR Courtney-Tennant for plaintiffs in Civ 2006-404-
1094 and Civ 2009-404-6754
SB Mitchell for first defendant
UV Schall for second and fourth defendants
DPL Greig for third defendant
IJ Law for third third party in Civ 20060404-1094 and defendant in
Civ 2009-404-6754
BJ Spiers for second third party
Judgment: 14 July 2010 at 9:20am
(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for consolidation of proceedings]
Solicitors:
Civ 2006-404-1094 Grimshaw & Co, PO Box 6646, Auckland for plaintiffs
Civ 2007-404-7587 Heaney & Co, PO Box 105 391, Auckland for first defendant
Kensington Swan, Private Bag 92 101, Auckland for second and fourth defendants
Jones Fee, PO Box 1801, Auckland for third defendant
DLA Phillips Fox, PO Box 160, Auckland for first third party
Simpson Grierson, Private Bag 92 518, Auckland for second third party
Civ 2009-404-6754 Grimshaw & Co, PO Box 6646, Auckland for plaintiffs
DLA Phillips Fox, PO Box 160, Auckland for defendant
BODY CORPORATE 198900 AND ANOR V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2006-
404-001094 14 July 2010
ANDPROMANCO KENMAN (AUCKLAND) LIMITED
Fourth Defendant
ANDPATON ROOFING SERVICES LIMITED First Third Party
ANDTHERMOSASH COMMERCIAL LIMITED
Second Third Party
CIV 2007-404-007587
BETWEEN CINO BLAGOJA GURSHIN, KIRO GURSHIN AND MACKY TRUSTEE COMPANY LIMITED OF THE BIGLA TRUST AND OTHERS
Plaintiffs
ANDAUCKLAND CITY COUNCIL First Defendant
ANDMELVIEW THE QUAYS LIMITED Second Defendant
ANDPEDDLE THORP AITKEN LIMITED Third Defendant
ANDPROMANCO KENMAN (AUCKLAND) LIMITED
Fourth Defendant
CIV 2009-404-006754
BETWEEN BODY CORPORATE 198900
First Plaintiff
ANDWATERFRONT RETAIL LIMITED; BHANA INVESTMENTS LIMITED; AUCKLAND VIADUCT LIMITED and Others
Second Plaintiffs
ANDPATON ROOFING SERVICES LIMITED Defendant
[1] This is an oral application by the plaintiffs pursuant to r 10.12 of the High
Court Rules for the consolidation of three proceedings.
[2] Consolidation is opposed by the first and third defendants and the second third party. They do not oppose the making of an order that the three proceedings be tried at the same time.
[3] The three proceedings seek damages for defects in the unit title development known as the Quays at 99 Customs Street West.
[4] The claims all arise out of the construction of the building and an allegation that there were shortcomings and defects in that process.
[5] In support, the plaintiffs rely on the following which I have summarised from the memoranda that have been filed;
a) The three proceedings seek damages for the defects arising out of construction in the building;
b) The first plaintiff is plaintiff in the 2006 and 2009 proceedings;
c) The 2007 proceedings added additional second plaintiffs (ie the unit holders);
d) The 2006 and 2007 proceedings have the same defendants;
e) The 2009 proceedings added Paton Roofing Services Limited as a defendant. That company is a third party in the 2006 and 2007 proceedings;
f) My minute of 16 June 2010 directed that the three proceedings be case managed together.
[6] Those who oppose consolidation advance the following which I have extracted from the memoranda.
a) Affirmative defences differ in the proceedings. In particular limitation defences are better preserved by keeping the proceedings separate;
b)Consolidation would require substantial repleading. That involves substantial expense and prejudice particularly to defendants in the preparation of their defences;
c) The plaintiff made a deliberate choice to proceed with three proceedings. There is no justification to change that position at this stage when the interest of justice can effectively be best served by hearing all three cases at the same time.
[7] Rule 10.12 provides:
10.12 When order may be made
The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—
(a) that some common question of law or fact arises in both or all of them; or
(b)that the rights to relief claimed therein are in respect of or arise out of— (i) the same event; or
(ii) the same transaction; or
(iii) the same event and the same transaction; or
(iv) the same series of events; or
(v) the same series of transactions; or
(vi) the same series of events and the same series of transactions; or
(c) that for some other reason it is desirable to make an order under this rule.
[8] I record some additional matters. In my minute of 29 April 2010 I gave trial directions and ordered a pre-trial conference. The 2006 proceeding has a first backup trial position for the third quarter in 2011. It is not anticipated that an order
requiring that the three proceedings be tried at the same time would increase the current estimate of trial time which is 12 weeks.
[9] There are obvious advantages in trying the three proceedings at the same time. The central issues arise out of the construction of the subject building and require analysis of whether there were actionable errors by those involved in construction entitling the plaintiff to damages. The jurisdiction for making an order under r 10.12 is established. The only issue is whether a formal consolidation as opposed to the alternative provided for in the rule, namely, an order that the proceedings be tried at the same time, is appropriate. I accept the reasons given by those opposing a formal order for consolidation and consider that justice can best be met in this case by an order that the three proceedings be tried at the same time.
[10] Accordingly, I order that CIV 2006-404-1094, CIV 2007-404-7587 and CIV
2009-404-6754 be tried at the same time.
[11] Costs in relation to this matter are reserved.
[12] I record that with this judgment I am referring the file to the Civil List Judge for this Registry with a covering memorandum which supports the assignment of
these proceedings to a trial judge at an earlier time.
JA Faire
Associate Judge
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