Body Corporate 325261 v Stephen Mitchell Engineers Ltd

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8000 [2014] NZHC 761

IN THE MATTER             known as "C-VU APARTMENTS"

BETWEEN  BODY CORPORATE 325261

First Plaintiff

ANDRODNEY WILLIAM COOKE AND OTHERS

Second Plaintiffs

ANDSTEPHEN MITCHELL ENGINEERS LIMITED

Sixth Defendant

ANDSTEPHEN ROBERT MITCHELL Seventh Defendant

Hearing:                   31 March 2014; further submissions 1 and 3 April 2014

Appearances:           SJ Mills QC and B O'Callahan for 6th and 7th

Defendants/Applicants

G Kohler QC and C Baker for Plaintiffs/Respondents

Judgment:                14 April 2014

JUDGMENT OF TOOGOOD J

[Application for leave to bring an application for review of a decision of an

Associate Judge]

This judgment was delivered by me on 14 April 2014 at 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BODY CORPORATE 325261 v STEPHEN MITCHELL ENGINEERS LTD & ORS [2014] NZHC 761 [14 April 2014]

Table of Contents  Paragraph

Number

Introduction and result  [1] Procedural background  [6] Defendants’ submissions  [10] Plaintiffs’ submissions  [11] Defendants’ reply  [13] Relevant law  [15]

Consideration of the relevant factors  [19]

Is  there  a  reasonable  prospect  that  the  Associate

Judge’s decision will be held to be wrong?

[20]

The defendants’ arguments for striking out  [22]

The plaintiffs’ arguments  [31]

The Associate Judge’s reasons  [32]

Was the Associate Judge’s view of the defendants’ legal

arguments correct?

Additional consideration: the Court of Appeal’s subsequent judgment in Westland District Council v York

[35] [40]

Conclusion on strength of defendants’ legal arguments                [46] Other factors  [47] Decision and costs  [50]

[1]      The sixth and seventh defendants, Stephen Mitchell Engineers Ltd (SML) and Stephen Robert Mitchell (“the defendants”), have applied for leave to review a decision1  in which Associate Judge Christiansen dismissed an application to strike out part of the plaintiffs’ claims.  It occurs as part of a wider proceeding concerning alleged defects in the construction of a unit title development in Auckland known as C-Vu Apartments (“C-Vu”).  The plaintiffs allege that C-Vu suffers from numerous

defects relating to both watertightness and structural integrity.

[2]      SML was responsible for preparing the structural design and specifications for the construction of C-Vu and also for confirming C-Vu was compliant with the building code.  Mr Mitchell is the principal and director of SML.

[3]      Leave for review of the Associate Judge’s decision is required because the

defendants filed their application out of time.

[4]      The plaintiffs are Body Corporate 325261 and the individual owners of 130 units at C-Vu (“the plaintiffs”).  The trial is set down for 10 weeks beginning on 14

July 2014.

[5]      For the reasons given below, I dismiss the application.

Procedural background

[6]      In  a  judgment  issued  on  3  March  2014,  Associate  Judge  Christiansen considered  the  defendants’  submissions  that  certain  of  the  plaintiffs’ claims  in negligence were time-barred and should be struck out as disclosing no reasonably arguable cause of action.2    The Judge said the defendants’ arguments were novel,3

inconsistent with existing authority4 and better left for resolution at trial.5   The Judge

1      Body Corporate 325261 v McDonough [2014] NZHC 331.

2      High Court Rules, r 15.1.