Body Corporate 338356 v Endean - [2014] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-001415 [2014] NZHC 2644

BETWEEN
BODY CORPORATE NO. 338356

First Plaintiff

DANIEL JAMES HALASKA AND OTHERS

Second Plaintiffs

AND

WILLIAM ARTHUR ENDEAN JOHN EDWARD ENDEAN CHRISTINE HEATHER ENDEAN First Defendants

CLARK BROWN ARCHITECTS LIMITED

Second Defendant

Contd…/…

Hearing: 20 October 2014

Appearances:

C Baker for the Plaintiffs
A Barker for the First Defendant
R Hollyman and A Holmes for the Second Defendant
J Morrison for the Third Third Party
No Appearance for Other Defendants or Third Parties

Judgment:

28 October 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 28 October 2014 at 4.45 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

BODY CORPORATE NO. 338356 & ORS v ENDEAN & ORS [2014] NZHC 2644 [28 October 2014]

ANDJAMES HARDIE NEW ZEALAND LIMITED
Fourth Defendant and First Third Party
GRAHAM HENRY WILLIAM WHITE
Sixth Defendant
BOSTIK (AUSTRALIA) PTY LIMITED
Third Third Party
BONDOR NEW ZEALAND LIMITED Fourth Third Party

Introduction

[1] These proceedings concern an apartment building on St Paul’s Street near

Auckland University. It comprises 78 units and was constructed between 2002 and

2004.

[2] The first and second plaintiffs allege that the building leaks and they have brought proceedings against those they say are responsible. Their original statement of claim was dated 9 March 2010. There have been a number of amendments to the pleading since. These culminated in the fourth amended statement of claim dated
24 May 2013. It was filed on 27 May 2013.

[3] The proceeding has been allocated a fixture. It is due to proceed to hearing on 9 February 2015.

[4] The close of pleadings date was 2 July 2014.

[5] On 3 July 2014, the plaintiffs applied for leave to further amend their statement of claim. A proposed fifth amended statement of claim was served on the parties. That document has subsequently been amended yet again, albeit in relatively minor ways. To explain the proposed fifth amended statement of claim, the plaintiffs also served copies of their expert reports. They set out the factual basis for the amendments proposed.

[6] The first defendants were the owners of the land on which the building now sits. They developed the complex. The second defendant is a firm of architects. They prepared the plans and specifications for the building. Both the first and second defendants oppose the application to file the fifth amended statement of claim.

[7] The sixth defendant was a director of the company that certified the various stages of the development and completed the final code compliance certificate. The company has since been struck off. He also opposes the application. His appearance was excused by Faire J in a minute issued on 16 October 2014. The minute recorded

that the sixth defendant supports the position taken by the first and second defendants.

[8] There was an appearance for the third third party. It did not oppose the application and Mr Morrison on…

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.

Keep reading for free

Create a free CaseChat account to read Body Corporate 338356 v Endean and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2644
Decision Date: 28 October 2014

CaseChat Overview and Summary

The plaintiffs, Body Corporate 338356 and others, brought proceedings against the defendants, including the owners of the land and the architects, for leaks in an apartment building constructed between 2002 and 2004. The plaintiffs sought leave to file a fifth amended statement of claim after the close of pleadings date, which the defendants opposed. The central legal issues were whether the proposed amendments raised a new cause of action that was statute-barred and whether leave to file the amended statement of claim should be refused under r 7.7 of the High Court Rules. The Court found that the proposed fifth amended statement of claim did not introduce a new cause of action, as the remedial works detailed in the claim were not fundamentally different from those pleaded in the fourth amended statement of claim. The Court also concluded that granting leave was in the interests of justice and would not significantly prejudice the defendants or cause significant delay. Accordingly, the plaintiffs were granted leave to file the proposed fifth amended statement of claim, subject to certain agreed deletions. The Court noted that the issue of whether the additional parts of the amended statement of claim were statute-barred remained live and could be raised by the defendants in their respective defences and at trial. The plaintiffs were awarded their reasonable costs and disbursements.

Orders