Body Corporate 354994 v Auckland Council

[2018] NZHC 1121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2013-404-3074

[2018] NZHC 1121

IN THE MATTER

of “ASCENT APARTMENTS”

BETWEEN

BODY CORPORATE 354994

First Plaintiff

HEANEY INVESTMENT LIMITED & ORS

Second Plaintiffs

AND

AUCKLAND COUNCIL

First Defendant

PBS CONTRACTING LIMITED (IN LIQUIDATION)

Second Defendant

CCSNZ LIMITED (formerly known as SYMONITE NEW ZEALAND LIMITED) (IN LIQUIDATION)

Third Defendant  …Cont

Hearing:

18 May 2018

Appearances:

A Hough and B M Easton for Plaintiffs

S C Price and J Wilson for First Defendant B J Ward & S T Coupe for Fourth Defendant

P R Cogswell for Sixth Third Party (watching brief only)

Judgment:

18 May 2018

JUDGMENT OF LANG J

[on interlocutory issues]

This judgment was delivered by me on 18 May 2018 at 3.30 pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

BODY CORPORATE 354994 v AUCKLAND COUNCIL [2018] NZHC 1121 [18 May 2018]

DOWNER NEW ZEALAND LIMITED

Fourth Defendant / Second Third Party

ALUMINIUM TECHNOLOGY LIMITED
Fifth Defendant / Third Third Party

WOODHAMS MEIKLE LIMITED

Sixth Defendant

WOODHAMS         MEIKLE         ZHAN ARCHITECTS LIMITED

Seventh Defendant

NATIONAL ALUMINIUM LIMITED

Sixth Third Party

[1]                  The purpose of this judgment is to set out the decisions reached at the hearing earlier today.

Consolidation of proceedings

[2]                  This proceeding has been running in tandem with CIV-2015-404-890. That proceeding has the same plaintiffs as the present proceeding. The defendants in that proceeding are also the first and seventh third parties in this proceeding. In practical terms, however, the two proceedings have been consolidated because the statement of claim in the present proceeding now incorporates the claims formerly made against the two defendants in CIV-2015-404-890.

[3]                  To avoid confusion at trial I make an order under r 10.12 of the High Court Rules 2016 that the two proceedings are to be consolidated. Henceforth the first and seventh third parties in this proceeding are to be the sixth and seventh defendants. The third party claims against those defendants shall be treated as being cross-claims between defendants. The intituling of this judgment reflects the consolidation of the proceedings in this way.

Addition of new second plaintiffs

[4]                  Leave is sought to add further second plaintiffs to the proceeding in substitution for unit owners who have sold their units to the proposed plaintiffs and assigned their causes of action in this proceeding to them.

[5]                  There now being no opposition, I grant the application on the basis that the joinder of the new plaintiffs shall not relate back and will take effect from the date of the order adding them as plaintiffs. The order shall operate without prejudice to any limitation defences, either existing or that may arise out of the joinder.

[6]                  I direct by consent that newly added second plaintiffs are to provide discovery within a month of today’s date.

[7]                  The plaintiffs also have leave in the future to substitute further second plaintiffs when unit owners sell their units and assign their causes of action to the purchasers.

Such joinder shall be on the same terms as the orders I have just made. Any newly named second plaintiffs are to provide discovery within one month of acquiring their units. It will not be necessary for the plaintiffs to file and serve an amended statement of claim updating the names of second plaintiffs until one month prior to the hearing.

Discovery

[8]                  Mr Price for the Auckland Council (the Council) raises a concern that the plaintiffs may not have provided full discovery. The plaintiffs anticipate filing and serving a supplementary list of documents by 23 May 2018. This will update discovery and will confirm that all documents have now been discovered. In those circumstances Mr Price accepts he cannot take this issue further.

Proposed amendment of statement of claim

[9]                  The plaintiffs seek leave to file an amended statement of claim that they contend will refine the particulars provided in support of the plaintiffs’ claims. The Council and the fourth defendant, Downer Construction Limited, oppose the application on the basis that they contend the amendments introduce new defects that would otherwise be barred for limitation reasons. They also say their clients should not be put to the trouble and expense of investigating and defending new allegations at this late stage.

[10]              Having considered the material filed in relation to the application, I find myself unable to determine whether the amendments add new defects or merely refine defects that have already been pleaded. There may also be an argument as to whether the introduction of new defects, as distinct from new causes of action, engage limitation principles at all.1 Any limitation issues will therefore need to be determined at trial.

[11]              I see no prejudice to the defendants in the proposed grant of leave. In particular, I consider it unlikely that the proposed amendments will result in the defendants being required to undertake significant investigative enquiries or incur

1      See Body Corporate 346799 v KNZ International Co Ltd [2016] NZHC 1523 at [25]-[26] and

Ministry of Education v H Construction [2018] NZHC 871 at [261]-[263].

substantially greater expense. It is better in my view that all defects are particularised so that the defendants know where they stand.

[12]              The only real prejudice to the defendants lies in the fact that the defects in question have now been repaired or replaced and are no longer available for the defendants to inspect or test. That is unfortunate but I do not consider it outweighs the factors favouring amendment. Any remaining prejudice can be cured by extending the time within which the defendants will be required to serve their evidence.

[13]The application is granted.

Lang J