Body Corporate 33856 v Endean

[2013] NZHC 629

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2010-404-001415 [2013] NZHC 629

BETWEEN  BODY CORPORATE 338356

First Plaintiff

ANDDANIEL JAMES HALASKA & ORS Second Plaintiffs

ANDWILLIAM ARTHUR ENDEAN, JOHN EDWARD ENDEAN AND CHRISTINE HEATHER ENDEAN

First Defendants

ANDCLARK BROWN ARCHITECTS LIMITED

Second Defendant

Hearing:         25 March 2013

Appearances: M L Thornton for first defendant

S R Judd for fifth defendant/second third party

Judgment:      27 March 2013

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 27 March 2013 at 5pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

J Rushton/P Biddle, Price Baker Berridge, P O Box 21463, Henderson, Waitakere
M Thornton, PO Box 91441, Victoria Street West, Auckland

D Spencer, PO Box 8080, Symonds Street, Auckland

D Barr/S Hann, Auckland Council, Private Bag 92300, Auckland
J Appelby, Ladbrook Law Limited, PO Box 37633, Parnell, Auckland

J A McKay/K Kemp, Chapman Tripp Sheffield Young, PO Box 2206, Auckland

C Walker/B Prewett, Gilbert Walker, PO Box 1595, Shortland Street, Auckland

Counsel:

B Hollyman, Barrister, P O Box 4338, Shortland Street, Auckland

S Judd, Barrister, P O Box 3320, Shortland Street, Auckland

BODY CORPORATE 338356 V WILLIAM ARTHUR ENDEAN, JOHN EDWARD ENDEAN AND CHRISTINE HEATHER ENDEAN HC AK CIV 2010-404-001415 [27 March 2013]

ANDAUCKLAND CITY COUNCIL Third Defendant

ANDJAMES HARDIE NEW ZEALAND LIMITED

Fourth Defendant/First Third Party

ANDRUDNEV DOOR SYSTEMS NORTH ISLAND LIMITED

Fifth Defendant/Second Third Party

ANDGRAHAM HENRY WILLIAM WHITE Sixth Defendant

ANDBOSTICK (AUSTRALIA) PTY LIMITED Third Third Party

ANDBONDOR NEW ZEALAND LIMITED Fourth Third Party

[1]      This  proceeding  concerns  a  leaky building  dispute.    It  arises  out  of  the construction of a unit-title property development in St Paul Street, Auckland, known as St Paul Apartments.  The plaintiffs are the Body Corporate for the development, together with present or past unit owners.   They say that the property has been constructed with defects that have allowed ingress of moisture and have caused damage to the building. They sue several parties for the cost of remedial work which they say is required.

[2]      The defendants include the former owners and developers of the land (the trustees of family trusts that carried out the development in a partnership, to whom I will  refer  as  the  Endeans),  James  Hardie  New  Zealand  Ltd  (a  manufacturer  of building products, including panelling used to clad the building), and Rudnev Door Systems  North  Island  Ltd  (the  assembler  of  the  cladding  panels  used  on  the building).

[3]      As well as being sued by the plaintiffs, Rudnev has been joined as a third party by the Endeans, who are seeking contribution (as a concurrent tortfeasor) towards any sum for which the Endeans may be liable, and damages for breach of a duty of care said to be owed to them both as owners of units in the development and as developers.  In addition James Hardie has made a cross claim against Rudnev also seeking contribution as a concurrent tortfeasor.

[4]      The plaintiffs and the Endeans say that Rudnev is liable to them because…