Body Corporate 204464 v Waitakere City Council HC Auckland CIV 2008-404-7428

[2010] NZHC 2090

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-007428

BETWEEN  BODY CORPORATE 204464

First Plaintiffs

ANDGAYLENE YVONNE BACKHOUSE & ORS

Second Plaintiffs

ANDWAITAKERE CITY COUNCIL First Defendant

ANDARROW INTERNATIONAL LIMITED Second Defendant

ANDSIMON KENNETH HOLLOWAY Third Defendant

Hearing:         19 November 2010

Appearances: D G Hurd for the Second Defendant

M Robertson for QBE Insurance (International) Limited

Judgment:      19 November 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

BODY CORPORATE 204464 AND ANOR V WAITAKERE CITY COUNCIL AND ORS HC AK CIV 2008-

404-007428  19 November 2010

ANDC. F. KING CONTRACTING LIMITED AND ROBERTSON BIXLEY LIMITED

First Third Party

ANDDAVID JAMES FOSTER Second Third Party

ANDVERO INSURANCE NEW ZEALAND LIMITED

Third Third Party

ANDQBE     INSURANCE    (INTERNATIONAL) LIMITED

Fourth Third Party

Solicitors/Counsel:
M Robertson, Shieff Angland, Auckland - [email protected]
D Hurd, Dawson Harford & Partners, Auckland – [email protected]
D Cowan, Rainey Law, Auckland –[email protected]

C Goode, Heaney & Co, Auckland - [email protected]

S Stokes, Dawson Harford, Auckland – [email protected] I Law, DLA Phillips Fox, Auckland [email protected]

S Hamilton, Kennedys, Auckland – [email protected]
R Tosh, Jones Fee, Auckland – [email protected]
N Pye, Keegan Alexander, Auckland – [email protected]

J McKay, Chapman Tripp, Auckland – [email protected]

Copy to:
Mr S Holloway, [email protected]

AND CONSOLIDATION OF CIV 2009-404-002124 (8 Crown Lynn)

BETWEEN	BODY CORPORATE 204474 First Plaintiff
AND	ORS	MAY ELIZABETH VON DINKLAGE & Second Plaintiffs
AND	WAITAKERE CITY COUNCIL First Defendant
AND	ARROW INTERNATIONAL LTD Second Defendant
AND	KRIS INGLIS & KARL ADLAM Third Defendants
AND	SIMON KENNETH HOLLOWAY Fourth Defendant
AND	DARYN PETER MCDONALD Fifth Defendant
AND	DAVID JAMES FOSTER First Third Party
AND	HEADLAND HOLDINGS LIMITED Second Third Party
AND	PLASTER OPTIONS LIMITED Third Third Party
AND	QBE     INSURANCE    (INTERNATIONAL)

LIMITED

Fourth Third Party

ANDJAMES HARDIE NEW ZEALAND LIMITED

Fifth Third Party

[1]      A telephone conference was convened before me on 19 November 2010 at the request of counsel for the second defendant and QBE Insurance.

[2]      My earlier minute dated 13 October 2010 indicated that the second defendant wished to join QBE as a third party.  QBE has already been joined as a third party by another defendant.

[3]      On 13 October, Mr Hurd for the second defendant advised that the second defendant as head contractor had engaged Oakland as the carpentry and concreting contractor.  In the outcome of extensive enquiries it had been determined that QBE held a public liability policy for Oakland.  He said the second defendant wished to commence proceedings against QBE under s 9(4) of the Law Reform Act 1936 to enforce the charge created by s 9(1) of that act.  Mr Hurd applied orally for leave to join QBE.

[4]      Although my minute does not record it, I recall at the 13 October telephone conference enquiring if any party had an objection to the leave application.  None was indicated.  I was aware at the time that QBE was represented at the conference by Ms Pye in connection with its joinder by another defendant to the proceeding.

[5]      In that outcome I made an order granting leave for the second defendant to join QBE.

Events post 13 October 2010

[6]      On   15   November   2010   the   second   defendant   filed   an   interlocutory application for leave to commence a proceeding against QBE under s 9.  In support, a lengthy affidavit was filed by Ms J Oliver a solicitor of the firm (DHP) acting for the second defendants.

[7]      It records:

a)        That DHP wrote to QBE and advised DHP understood that at the relevant time Oakland held public liability insurance with QBE.  The

letter provided a policy number and requested QBE to provide a copy of the policy or any other policies that may have been relevant to Oakland’s construction role.

b)On  11  May 2010  DHP  received  a  letter  from  Shieff  Angland  on behalf of QBE advising QBE had reviewed its records and “has not been able to identify any public liability policy with Oakland in the

1999/2000 time period or otherwise”.

c)       On 27 August 2010 Mr White, previously a director of Oakland, was examined   in   the   High   Court   to   obtain   information   regarding Oakland’s  insurance  policies.    Following  this  examination,  DHP wrote to Shieff Angland on 31 August 2010 requesting that QBE review its files again to determine whether Oakland held insurance policies with it.

d)On 12 October 2010 Shieff Angland confirmed that Oakland held public liability insurance cover with QBE and enclosed documents including an extract of QBE’s relevant policy wording.

[8]      Ms Oliver deposed the public liability policy held by Oakland with QBE is essentially the same as held by another defendant that had already joined QBE as a party to the proceeding.

[9]      Ms Oliver explained that initially it was determined that the second defendant would bring claims against QBE as insurer of Oakley in relation to both proceedings and wrote 11 November 2010 to Shieff Angland and to other solicitors advising their intentions.  In response Shieff Angland replied on 12 November 2010 advising it did not accept that leave had properly been granted to join QBE as insurer and that they required the second defendant to file applications for leave accordingly.

[10]     It appears to me I have already granted leave permitting the second defendant to join QBE as third party to both these proceedings.  I note however that the second defendant has proceeded with an application on notice for the purpose of removing any doubt.  Mr Hurd explains that the ten year long stop period for bringing claims in  relation  to  both  developments  is  likely  to  expire  on  28  November  and  21

December 2010 respectively.  It is clear that QBE are aware of this.

[11]     In discussion before me, Mr Robertson advised that by the judgment of Ellis J in CIV 2006–404-1055 delivered on 16 November 2010 the grant of leave pursuant to Rule 4.56 does not amount to leave having been granted for the purposes of s 9(4) of the Law Reform Act.  I did not have a copy of the decision before me at the time of my discussion with counsel but in the course of those discussions it appears the learned judge was concerned about the right of the insurance company under s 9(4) to have an opportunity to be heard.

[12]     If that is the purpose of Ellis J’s judgment then it is clear such an opportunity has already been provided to QBE and its solicitors.  During that time and not until the last few days has any objection to joinder been indicated.  Even though they have had short notice only within which to file a notice of opposition to the current application, none has been filed.

[13]     I am satisfied on the basis of information available to the Court that there is an arguable case for leave to proceed against the insured whose relevant policy of insurance is in all important respects the same as that by which it has been joined by another defendant.

Judgment

[14]     Accordingly  leave  is  granted  to  the  second  defendant  to  commence proceeding against QBE Insurance (International) Limited under s 9 of the Law Reform Act 1936.

[16]     I have reached this conclusion content that if QBE does not accept it then amongst other avenues available to it is the right to apply in due course for any proceeding against it to be struck out on the basis that no cover is available by the terms of its policy.

Associate Judge Christiansen