Body Corporate 355492 v Queenstown Lakes District Council

[2022] NZHC 1780

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-425-36

[2022] NZHC 1780

IN THE MATTER

known as “Oaks Shores”

BETWEEN

BODY CORPORATE 355492

First Plaintiff

AND

QUEENSTOWN LAKES DISTRICT COUNCIL

First Defendant

AND

OTHERS (in the Schedule to this Judgment)

Counsel:

R W Raymond QC and D J Powell for Plaintiffs

S D Campbell and M L Rhodes for First Defendant

Judgment:

22 July 2022

(Determined on the papers)

JUDGMENT OF OSBORNE J

BODY CORPORATE 355492 v QUEENSTOWN LAKES DISTRICT COUNCIL [2022] NZHC 1780 [22 July

2022]

Introduction

[1]                 In this proceeding the plaintiffs as owners of a Queenstown apartment complex sue the first defendant (Council) and others in relation to building defects. The buildings were constructed between 2004 and 2006. The Council issued code compliance in September 2007.

[2]                 By the plaintiffs’ sixth amended statement of claim (22 February 2019), but not before, the plaintiffs identified a claim in relation to bathroom pods. In relation to that aspect of the plaintiffs’ claim, the Council joined two additional third parties.1

[3]                 After the close of pleadings date, the Council applied for an order striking out that part of the plaintiffs’ claim that relates to the bathroom pods. The tenth third party also applied for an order to strike-out the Council’s claim against it.

[4] The strike-out applications were based on limitation issues and, in particular, the longstop provision contained in s 393 Building Act 2004.

[5]                 The strike-out applications were heard by Associate Judge Lester who delivered a judgment (the Initial Judgment) striking out the parts of the plaintiffs’ claim relating to the bathroom pods and striking out the Council’s claim against the tenth third party.2

[6]The plaintiffs applied for review of the Initial Judgment.3

[7]                 I heard and determined the review, dismissing the application except to the extent that the grant of leave to the Council to apply for a strike-out order was amended (the Review Judgment).4

1      The Council subsequently discontinued the third party claim against one of those third parties.

2      Body Corporate 355492 v Queenstown Lakes District Council [2022] NZHC 678 [Initial Judgment].

3      The review procedure applied because this proceeding was pending on 1 March 2017: High Court Rules 2016, r 2.3; Judicature Act 1908, s 26P; Senior Courts Act 2016, sch 5 cl 11.

4      Body Corporate 355492 v Queenstown Lakes District Council [2022] NZHC 1494 [Review Judgment].

Application for leave to appeal

[8]The plaintiffs apply for leave to appeal against the Review Judgment.

[9]                 Under the transitional provisions applying to this proceeding,5 s 26P(1AA) Judicature Act 1908 governs any appeal from the Review Judgment, which provides:

The determination of the High Court on a review under subsection (1) is final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.

[10]              The Court of Appeal held in Payne v Attorney-General that applications for leave to appeal under s 26P(1AA) should be approached in the same way as applications under s 67 Judicature Act.6

[11]              For the plaintiffs, counsel invoke the principle that such an appeal must raise a question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the costs and delay of the further appeal.7

[12]              The Council does not oppose the application for leave and will abide the Court’s decision. Counsel for both the plaintiffs and the Council identify directions that might appropriately be made if leave is granted.

Discussion

[13] The decision of the Council not to oppose the granting of leave to appeal is responsible. Both the Initial Judgment and the Review Judgment reflect, in their discussion of the legal arguments, the fact that the correct application of the longstop provision in s 393 of the Building Act is a matter capable of bona fide and serious argument. In terms of the private interests of the parties, the bathroom pods aspect of the plaintiffs’ claim stands at $7,665,000 and justifies the cost and delay of a further appeal.

5      Senior Courts Act, sch 5 cl 11.

6      Payne v Attorney-General [2005] NZFLR 846 (CA) at [3]–[5]; Mailley v Shaw [2021] NZHC 3433 at [8]–[9].

7      Waller v Hider [1988] 1 NZLR 412 (CA) at 413–414.

Order

[14]I grant leave to the plaintiffs to appeal the Review Judgment.

[15]              In terms of counsels’ joint memorandum dated 18 July 2022, leave is granted on the basis the plaintiffs will do the following:

(a)within five working days of filing an appeal, apply for the appeal to be entered on the fast track in accordance with the Fast Track Practice Note 2015 (the Council consenting to that course);

(b)give undertakings at paragraph 4(5) of the Fast Track Practice Note; and

(c)advise the Court of Appeal that one day is an appropriate length of time for the appeal hearing and request that the appeal be set down for one day.

Osborne J

Solicitors:

Grimshaw & Co, Auckland (for Plaintiffs)

Counsel: R W Raymond QC, Christchurch

Wynn Williams, Christchurch (for First Defendant)

SCHEDULE 1

AND  JOHN ROBERT CHESTNEY & ORS

Second Plaintiffs

AND  ELLIOTT ARCHITECT LIMITED (in

liquidation) Second Defendant

AND  EDWIN GERARD ELLIOTT

Third Defendant

AND  HOLMES STRUCTURES LIMITED (in

liquidation) Fourth Defendant

ANDARCH UNDERWRITING AT LLOYD’S LIMITED

Fifth Defendant/Fifth Third Party

AND  ASTA MANAGING AGENCY LIMITED

Sixth Defendant/Sixth Third Party

ANDHARDY    (UNDERWRITING   AGENCIES) LIMITED

Seven Defendant/Seventh Third Party

AND  LIBERTY MANAGING AGENCY LIMITED

Eighth Defendant/Eighth Third Party

ANDSTEPHEN BRUCE MCLEAN (Discontinued) First Third Party

AND  JULIE RAEWYN WENSLEY JACK

(Discontinued) Second Third Party

ANDPETER LAWSON (Discontinued) Third Third Party

ANDDANIEL STEWART (Discontinued) Fourth Third Party

AND  DE GEEST CONSTRUCTION LIMITED

(Discontinued) Ninth Third Party

AND  DE GEEST BATHROOMS LIMITED

Tenth Third Party