Body Corporate 355492 v Queenstown Lakes District Council
[2021] NZHC 894
•27 April 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2015-425-36
[2021] NZHC 894
BETWEEN BODY CORPORATE 355492
Plaintiff
JOHN ROBERT CHESTNEY & ORS
Second PlaintiffsAND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Respondent
………………………………….cont’d over
Hearing: On the Papers Appearances:
D J Powell for Plaintiffs
C M Meechan QC and J R Halligan for Defendants
Judgment:
27 April 2021
JUDGMENT OF MANDER J
This judgment was delivered by me on ........................... at pursuant to Rule 11.5
of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
BODY CORPORATE 355492 v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 894 [27 April
2021]
AND ELLIOT ARCHITECT LIMITED
Second Defendant
EDWIN GERARD ELLIOT
Third DefendantHOLMES CONSULTING GROUP LIMITED
Fourth DefendantARCH UNDERWRITING AT LLOYD’S LIMITED
Fifth DefendantASTA MANAGING AGENCY LIMITED
Sixth DefendantHARDY (UNDERWRITING AGENCIES) LIMITED
Seventh DefendantLIBERTY MANAGING AGENCY LIMITED
Eighth Defendant
AND
STEPHEN BRUCE MCLEAN
First Third Party
JULIE RAEWYN WENSLEY JACK
Second Third PartyPETER LAWSON
Third Third PartyDANIEL STEWART
Fourth Third Party
ARCH UNDERWRITING AT LLOYD’S LIMITED
Fifth Third PartyASTA MANAGING AGENCY LIMITED
Sixth Third PartyHARDY (UNDERWRITING AGENCIES) LIMITED
Seventh Third PartyLIBERTY MANAGING AGENCY LIMITED
Eighth Third Party
[1] The Queenstown Lakes District Council (the Council) is one of a number of defendants being sued by the body corporate and owners of apartments in a complex known as Oaks Shores. The plaintiffs allege the apartments suffer from numerous building defects. They have issued claims against the entities involved in the construction of the development and against the Council which was responsible for its inspection and certification.
[2] The Council brought an application that the plaintiffs provide further and better particulars, which was determined by Associate Judge Paulsen.1 The Associate Judge ordered the plaintiffs to provide further particulars regarding the nature of the repairs or remedial solution to be carried out to repair defects and damage, but declined to require the plaintiffs to provide particulars of the estimated repair costs to fix each defect. The Council seeks to review that part of the Associate Judge’s ruling.2 The Council also seeks an extension to file the review out of time.3
Background
[3] The Oaks Shores development comprises four blocks of apartments situated on Frankton Road in Queenstown. The plaintiff, Body Corporate 355492 (the Body Corporate), is the body corporate under the Unit Titles Act 1972 incorporated for Oaks Shores. The second plaintiffs are the owners of the apartments in the complex. They allege that Oak Shores was constructed with defects that require extensive repairs for which, they maintain, the defendants are liable to pay and from whom they also seek to recover other alleged losses.
[4] The Council is the responsible local authority that issued building consents for Oak Shores, carried out inspections of that building work and issued code of compliance certificates, the last of which was issued in September 2007.
1 Body Corporate 355492 v Queenstown Lakes District Council [2020] NZHC 2590.
2 Senior Courts Act 2016, sch 5, cl 11(3); Judicature Act 1908, s 26P(1); High Court Rules 2016, r 2.3; Rewi v Attorney-General [2010] NZCA 328; Reid v Reid [2013] NZCA 322; Siemer v Heron [2013] NZCA 599; and Sisson v Commissioner of Inland Revenue [2016] NZCA 553, (2016) 27 NZTC 22-080.
3 High Court Rules 2016, r 1.19.
[5] The plaintiffs allege that Oaks Shores was constructed with defects. In a schedule annexed to the latest amended statement of claim, 18 defects under the headings: Balconies, Roof and Barge Junctions, Fire Defects, Structural, Bathroom Pods, and Cladding Cavities, are listed (Schedule 5). In respect of a number of these defects, the schedule refers to water penetration that has or will cause undue damage and dampness to building elements, and other defects that are also suggestive of water penetration of the buildings. The plaintiffs allege that these defects are the result of breaches of the Building Code,4 the Building Acts 1991 and 2004, and the building consent, and will need to be the subject of extensive repairs. The plaintiffs allege that the Council breached its duties of care in issuing the building consents and code of compliance certificates, and in its inspection of building work.
[6] At the time of the Council’s application for further particulars, the current amended statement of claim was the seventh amended statement of claim, dated 1 May 2020. That statement of claim alleged the estimated cost of carrying out the repairs to be approximately $75 million. After Associate Judge Paulsen’s judgment, the ninth amended statement of claim, dated 30 November 2020, was filed. It pleads the estimated cost of repairs to be $120,462,500. Additional sums are claimed for lost rental and profits, and moving, storage and cleaning costs.
[7] The plaintiffs have undertaken remedial work on one of the four blocks. It is estimated that the repair work to this first block will be finished in May this year. The plaintiffs maintain that until that work is completed its experts will not be able to identify all the remedial work arising from the various defects and no final estimate of the cost of remediation for the whole of the complex can be made. However, as a result of Associate Judge Paulsen’s rulings, a further schedule (among others) has been added to the latest amended statement of claim that sets out, albeit in broad terms, the scope of works to repair the defects and damage to each of the four blocks.
The decision under review
[8] After reviewing relevant case law, Associate Judge Paulsen turned to consider the particulars sought by the Council that remained in issue between the parties. The
4 Building Regulations 1992, sch 1.
Judge ordered the plaintiffs to provide further particulars of the damage it is alleged has, or will be, caused by reason of the defects, the location of such damage, and the nature of the repairs or remedial solution that must be carried out to repair defects and damage.5 Associate Judge Paulsen held that the Council was entitled to particulars of repair work necessary to fix both defects and damage, and observed that in cases with such features, such as leaky building and earthquake litigation, it is not uncommon for the principal issue between the parties to be the proposed remedial solution.6 The Judge considered the particularisation of the remedial solution was required not only to inform the Council and the Court of the nature of the plaintiffs’ claim but to define the trial issues.7
[9] Referring to the schedule annexed to the plaintiffs’ statement of claim, the Associate Judge observed that the alleged defects had been plainly listed and that it was no answer to providing details of the required repair work relating to those alleged defects for the plaintiffs to allege in their pleading that those repair details would be particularised prior to trial.8 It was also no answer for the plaintiffs to say that they were not yet in a position to provide particulars of the remedial work. It was noted that the claim had been filed in 2015 and that after five years the plaintiffs have had time to get their claim in order. The Judge did not accept that the plaintiffs’ experts could not provide the details of the required repair work.9
[10] In relation to the further particulars sought by the Council in relation to the plaintiffs’ economic losses, the Associate Judge was less receptive. Associate Judge Paulsen considered that the particulars sought by the Council, insofar as it sought estimated repair costs to fix each defect, went beyond what was required. The Judge considered it would be extremely difficult to allocate a cost to the repair of each defect and he did not consider such an exercise would be worthwhile. He noted that, in some respects, what the Council was seeking was evidence not particulars.10 However, the
5 Body Corporate 355492 v Queenstown Lakes District Council, above n 1, at [50].
6 At [46].
7 At [46].
8 At [47],
9 At [49].
10 At [52]–[53].
Associate Judge did not accept the plaintiffs’ position that they were not in a position to provide particulars until the experts’ evidence was completed.11
[11] While the cost of remedial works would, even at this stage in the proceedings, be only an estimate that would have to be updated, that was noted to be the usual situation in cases of this type.12 Notwithstanding that observation, the Associate Judge accepted the plaintiffs’ proposal that when the information was available upon completion of the experts’ briefs of evidence, an amended pleading could be provided that included the overall cost of remedial work but not the cost per defect.13 The estimate of the total costs of remedial work was ordered to be provided with a breakdown of the extent to which those costs related to investigations, design and remedial work.14
Application for extension of time
[12] Notice of an application to review the decision of an Associate Judge is required to be filed and served within five working days of the decision.15 However, the Court has a discretion to extend the time.16 In exercising that discretion the Court will have regard to a variety of factors in order to determine where the overall justice lies. In carrying out that balancing exercise the Court will weigh the respective prejudice to each party.17 The length of the delay is a relevant consideration and while long delays will not normally be accommodated where there is no adequate explanation, applications that are only marginally out of time will usually be tolerated.18 Explanation for the delay and the merit of the application, together with
11 At [54].
12 At [54].
13 At [55].
14 At [56].
15 High Court Rules 2016, r 2.3(2)(a).
16 Rules 1.19(1) and (2).
17 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR2.3.03].
18 Beck, above n 17, at [HR1.19.01]. Compare Il Forno Ltd v Kleine [2018] NZHC 723 (delay of 12 days); Sutton v New Zealand Guardian Trust (1989) 2 PRNZ 111 (HC) (one month) with Gillespie v McKay (1999) 13 PRNZ 90 (HC) (17 months); Hsu v Moore Stephens Markhams Ltd [2014] NZHC 961 (14 years).
the importance of the principle of finality and the need to ensure the proceeding as a whole proceeds expeditiously, are all relevant considerations.19
[13] In the present case the Council misapprehended the procedural route to challenge the decision of an associate judge made in chambers. It believed that any challenge to the decision would be required to be made by way of appeal to the Court of Appeal within 20 working days of the decision. Upon realising its error, the Council promptly sought an extension of five working days to enable it to pursue its review of the Associate Judge’s decision. The Council’s error regarding the applicable procedure does not justify the late filing and service of the application but it does explain how it occurred. The plaintiffs do not identify any prejudice arising to them from the relatively short delay. Notably, the application would have been within time had the rules that now apply to current proceedings applied to this proceeding.20 In the circumstances it is appropriate to grant the extension.21
Review of decision
Council’s grounds
[14] The Council alleges that the Associate Judge failed to properly address the Council’s application for particulars of the repair work required to remedy each alleged defect and the cost to remedy each alleged defect. As a result, it argues that the only pleading of quantum is a “global pleading of universal ‘Economic Losses’”, which does not allow the Council to identify what costs are referable to which defect or category of defect such as structural, weathertightness, or fire, and what amount of the total economic loss each defendant may be liable for.
19 Beck, above n 17, at [HR2.3.03(a)], citing Sutton v New Zealand Guardian Trust Co Ltd, above n 18; and Crane Accessories Ltd v Lim Swee Hee [1989] 1 NZLR 221, (1988) 1 PRNZ 593 (HC); and Beck, above n 17, at [HR2.3.03(b)], citing Mu v Body Corporate 31241 [2012] NZHC 22.
20 The proceeding was filed on 14 March 2016, so was pending on 1 March 2017 and thereby subject to s 26P of the Judicature Act 1908, rather than the Senior Court Act 2016. The decision was a decision of an Associate Judge of the High Court sitting in chambers, notwithstanding the hearing for the application taking place in court. Rule 2.3 of the former High Court Rules 2016 (which applies to applications for review under the Judicature Act 1908) provides that an application for review is required to be brought within five working days of the relevant decision.
21 See Sutton v New Zealand Guardian Trust, above n 18, where leave was granted in comparable circumstances.
[15] The Council is particularly critical of the conclusion reached by the Associate Judge that in cases involving numerous defects affecting large multi-unit residential developments it would be inappropriate for the plaintiffs to have to set out the remedial work required to repair each defect and, by inference, in its submission, the cost to remedy each defect.
The plaintiffs’ opposition
[16] The plaintiffs, in opposition to the application for review, submit that Associate Judge Paulsen’s approach to the application for further particulars relating to the repair costs to fix each defect was correct and that his reasoning was sound. They argue that the particulars that were sought by the Council relating to the scope and cost of the repair work required to remedy each building defect went beyond the necessary scope of particulars of pleadings and are matters for evidence. Alternatively, the plaintiffs submit that the Council’s applications serve no useful purpose because the information sought by it is not yet available as their experts are still in the process of undertaking the work to the first block and designing and costing the remedial works for the remaining blocks.
Discussion
[17] A statement of claim is required to show the general nature of the plaintiffs’ claim to the relief sought and must give sufficient particulars to inform the Court and the party against whom relief is sought of the plaintiffs’ cause of action.22 The statement of claim must conclude by specifying the relief or remedy sought.23 A statement of claim seeking the recovery of a sum of money must state the amount as precisely as possible.24 Where exact figures are not available, an estimate can be provided. However, a defendant is entitled to know the amount of money sought from it and, to the extent possible, such details should be supplied on the basis that such information can be amended later, once expert evidence has been finalised.25
22 High Court Rules, r 5.26(a) and (b).
23 Rule 5.27(1).
24 Rule 5.32.
25 Beck, above n 17, at [HR5.32.02]; and Crossfit Inc v Exercise Industry Association Ltd [2016] NZHC 1028 at [129]–[130].
[18] In the context of leaky building litigation, Kós J (as he then was) in Platt v Porirua City Council identified the fundamental importance of particulars of a pleading as being to:26
(a)inform defendants as to the case they have to meet;
(b)limit the scope of matters the plaintiff may put in issue at trial (or in pre-trial settlement discussion);
(c)enable the defendants to know what witnesses it will need to retain and enable them to start preparing evidence ahead of the formal exchange of evidence; and
…
[19] After reviewing the approach taken to the sufficiency of pleadings in Platt v Porirua City Council and another case involving allegations of negligence against a council, Body Corporate 199883 v Auckland Council, Associate Judge Paulsen concluded that the sufficiency of particulars in any particular case cannot be approached in a mechanical manner.27 The Associate Judge correctly held that whether a pleading is adequate will be influenced by the nature of the case, the scope of the pleadings, the issues in dispute and the stage of the proceeding that has been reached, amongst other things. As identified by the Court of Appeal in Price Waterhouse v Vortex Group Ltd, the question to be asked is whether “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”28
[20] In dealing with the application before him, Associate Judge Paulsen was concerned with a range of particulars sought by the Council. The review raises an issue in respect of only one aspect of the Associate Judge’s decision as it relates to particulars of the economic loss, namely, the estimated repair costs to fix each defect. In bringing its application for review, the Council is critical of a particular observation made by the Associate Judge relating to the approach to be taken in a case alleging
26 Platt v Porirua City Council [2012] NZHC 2445 at [19].
27 Platt v Porirua City Council, above n 26, at [24]; Body Corporate 199883 v Auckland Council
[2017] NZHC 2042 at [17] and [36].
28 Price Waterhouse v Vortex Group Ltd CA179/98, 30 November 1998 at [19].
defects affecting a large multi-unit residential development. The Associate Judge stated:29
[48] However, in a case involving numerous defects affecting a large multi-unit residential development it would be inappropriate for the plaintiffs to set out the remedial work required to repair each and every defect, even if that were possible. I accept that it may not be possible to attribute repairs to specific defects. That would also seriously overload the pleading exercise. What is required are adequate particulars of the damage caused by the defects and a general description of the remedial solution that the plaintiffs say are necessary to fix the defects and damage.
(footnotes omitted)
[21] The Associate Judge’s comment needs to be placed in context. It arises in respect of his discussion of the further particulars sought by the Council of the repair work the plaintiffs allege is required to fix each defect as was then set out in schedule 4 attached to the then current amended statement of claim. As already noted, Associate Judge Paulsen accepted the alleged defects had been “plainly listed” in the pleading and rejected the submission the plaintiffs’ experts could not provide details of the required repair work required in relation to those defects. He ordered further particulars be provided of the nature of the repairs and/or remedial solution necessary to repair the defects and damage. The Council has not sought to review the Associate Judge’s order as it relates to further particulars of the nature of the repairs required to remediate the listed defects and these have now been supplied.
[22] I do not therefore see a connection or any causal link between the Associate Judge’s observation regarding the remedial work required to repair each and every defect, and the Council’s complaint that greater particularisation should have been ordered by the Associate Judge regarding the cost to repair each defect. Nor do I consider it necessary to provide any opinion as to the correctness of the statement, which appears to turn, at least on the Council’s argument, on the relevance of the Platt case that involved weathertightness defects in a single dwelling. However, having come to that conclusion, I accept there does appear to be some inconsistency in the approach taken to the provision of further particulars regarding the nature of the remedial solution to fix defects and repair damage and the Council’s application for
29 Body Corporate 355492 v Queenstown Lakes District Council, above n 1.
further information relating to the costs associated with carrying out repairs of the type required.
[23] In accordance with Associate Judge Paulsen’s direction, a schedule of the scope of works required has now been provided by the plaintiffs. The information is broad in outline and by no means detailed, but it does list the different pieces of work required to be undertaken to remediate the four apartment blocks. The breakdown of this work now stands in contrast with the bare figure of $75 million provided as the estimate of the cost of repairs at the time the application was heard, and that has since increased in the latest amended statement of claim to $120,462,500, which is broken down under the headings: Investigations $1,897,500; Design $5,175,000; and Remedial Work $113,390,000.
[24] The Council complains that it has no insight as to how the total figure pleaded aligns with the scope of works that has now been provided. It maintains that it was entitled to have those particulars of the scope of works provided and it should also be properly informed as to how the amount of the liability claimed against it is made up, at least by reference to that breakdown of the scope of works. In that regard, the Council argues that it needs to determine its exposure both in terms of its legal liability but also the size of that potential liability in monetary terms.
[25] The Council also says that it needs to determine to what extent it can make cross-claims against co-defendants. Further, the Council argues that its prospective liability arises at different stages of the building process, facing, as it does, allegations in respect of breaches of its duty of care in respect of the consenting, inspection and code of compliance stages. It argues that the plaintiffs have to prove negligence in respect of each of the defects at each stage, and it is entitled to make an assessment of each claim and the sums that are at stake. The Council submits that the global figure pleaded does not provide it with the information to which it is entitled, as a matter of pleading, to inform itself of its liability in respect of the various defects and to make a realistic assessment of its potential liability.
[26] The plaintiffs, however, make the point that their claim in relation to the Council extends to all of the defects and repair costs which they maintain can be
sheeted home to the Council’s negligence. The plaintiffs submit that they need only establish the repair cost arising from the totality of the identified defects. They argue that the Council’s application has shifted from requiring the plaintiffs to provide quantum in respect of each and every defect to one that now relates to the scope of works that has recently been provided. The plaintiffs also stressed that the issue regarding the provision of particulars is not a question of providing information the Council may find to be of assistance, but whether the plaintiffs are under an obligation to provide the particulars sought in order to comply with the relevant rule.
[27] I accept that what the Council now seeks may be less stringent than what was sought before Associate Judge Paulsen, and that the particulars required to be provided by a plaintiff are only those that it is obliged to furnish having regard to the nature of the case and the stage at which the proceeding has been reached. I am likely to be in a better position to make both that assessment, and whether the provision of an overall cost figure for the remedial work (albeit divided between investigations, design and remedial work) is sufficient in the circumstances, in light of the additional schedule outlining the scope of the required repair works that the plaintiffs have now provided.
[28] The plaintiffs identified difficulties in providing accurate costs of repairs. They argued that in certain areas the scope of repairs will overlap with repairs for other defects and in those cases will not be possible to attribute repairs to a single defect. It follows, in their submission, that, just as the scope of works required to repair the various defects will overlap, there will also be an overlap in the cost of those works. The exercise of calculating the cost to repair each building defect is not therefore straightforward and does not simply involve taking the total estimated repair costs and apportioning it between the defects. The plaintiffs also point to the remedial work on the first block which is still ongoing and that the current cost figure of $113,390,000 for remedial work is an estimate that will be refined further by the plaintiffs’ quantum experts after the lessons from the work carried out on the first block are applied to the rest of the complex, and after a full scope of works for the other blocks has been prepared.
[29] The plaintiffs maintain that they will plead more accurate estimates of the losses claimed against all defendants once the repair project in respect of the first block
has been completed, which is likely to be by about mid-2021. The provision of particulars of how much it is going to cost to fix the different categories of defect around such a timeframe, in the plaintiffs’ submission, falls well short of being on the “eve of trial”, which was a concern voiced by the Council.
[30] Against that, the Council points to the evolving and growing total figure for economic losses, and in particular the cost of repairs, that have been pleaded in successive amended statements of claim. In its submission, these figures must be based on information that has been made available to the plaintiffs regarding the cost of remediation. The Council points to the timing of the provision of these details being important in terms of managing its liability as a local authority and the difficulties in the absence of these details for it in assessing potential avenues that may lead to resolution, including offers of settlement.30
Decision
[31] In BNZ Investments Ltd v Commissioner of Inland Revenue, Miller J noted the impact of modern case management on the need for detailed pleadings. The Judge also cautioned that in complex cases “over-pleading can obscure rather than clarify the issues”.31 Kós J in Platt endorsed that view, observing that modern civil procedure “front-ends” litigation to a greater degree than previously and that judges will insist on issue identification at an early stage.32 The plaintiffs emphasise that in Platt Kós J observed that in the normal course of such cases it may not be possible to particularise quantum beyond indicative levels, which may be conveyed outside pleadings.33 However, it was also held that, to the extent that the plaintiff can, quantum should be particularised, albeit with precise quantum reserved to be proved at trial.34
[32] A case that has some parallels with the present, and I consider provides some useful guidance, is Body Corporate 351522 v Queenstown Lakes District Council.35 In that case the plaintiffs sued the defendants, including the Council, for
30 Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366.
31 BNZ Investments Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21,821 (HC) at [45].
32 Platt v Porirua City Council, above n 26, at [21].
33 At [36].
34 At [36].
35 Body Corporate 351522 v Queenstown Lakes District Council [2013] NZHC 559.
weathertightness issues and other building defects affecting a Queenstown apartment block. Amongst other orders sought by the Council was the provision of further and better particulars, including of the cost of structural, tanking and membrane issues that the plaintiffs pleaded were “currently estimated to be $300,000”, but which would be further particularised once further details were available prior to trial. As in the present case, that request was coupled with an application for particulars of the proposed scope of rectification in respect of those issues.
[33] The Council in that case identified a concern that it may concede at, or before, trial its responsibility for the existence of some defects but not others, and that unless the Council was aware of the alleged quantum of the claim arising in relation to a particular defect it would be unable to adequately identify the amounts that it might accept and those which it may deny.36 The Council’s argument was met with a similar rejoinder as in the present case, namely, that each set of problems were interrelated and that it was “not possible to separate costs” as between them.37 It was accepted some rectification costs were likely to be attributed to all three problems.38 It was also argued that the provision of the requested detail was premature, that details in relation to the scope of works was still being provided by the plaintiffs’ experts, and that, while some general information had been given, the plaintiffs were not yet in a position to provide particulars of the specifics even were the Court to order them.39
[34] In his decision requiring the requested particulars be provided, Associate Judge Osborne (as he then was) acknowledged that the scoping information, like the balance of the evidence the plaintiffs intended to adduce, would continue to evolve as the proceeding progressed and evidence was exchanged. However, he noted that the plaintiffs were coming to the point, nine months after the litigation had been commenced and a full two years after their statement of claim had been filed with the Weathertight Home Resolution Tribunal (the Tribunal), where they had to be able to state at least the approximate quantification of rectification costs in relation to particular work.40 The Associate Judge considered that the position had now been
36 At [116].
37 At [117].
38 At [118].
39 At [117]
40 At [118].
reached where the plaintiffs needed to provide the anticipated amended pleading in order to allow the defendants’ counsel the means to properly understand the issues for trial, assess the particular areas of expertise needed, and to brief their experts in relation to the allegations.41 In making the orders for further particulars the Court noted that the plaintiffs need not provide precise figures if the expert advice is that an approximation or a range is all that can be given.42
[35] The plaintiffs sought to distinguish Body Corporate 351522 on the basis that the approach taken by the Court in that case did not apply to the cost of rectifying the main defects and was limited to three separate heads of damage, whereas, in the present case, the Council was looking to the particularisation of quantum of its total liability for all defects. Associate Judge Osborne’s decision was limited to particular aspects of the plaintiffs’ claim. However, it is not apparent why any different approach would not have been taken to the balance of the claim had the parties lacked the benefit of a full report of the Weathertight Homes Resolution Service Assessor. This report was available because the claim originally started before the Tribunal and it no doubt provided much detail of the weathertightness issues relating to allegations of faulty design. However, I do note that the judgment only refers to the report containing a summary of costs broken down to current damage and future likely damage, and an estimated total cost of repairs.
[36] The standard of particularisation required will vary with the facts and circumstances of each case, and I acknowledge that excessively refined pleadings may be both unnecessary and wasteful, and that over-pleading can obscure rather than clarify the issues. However, I consider the Council, by this stage in the litigation, is entitled to greater particularisation of the cost of remedial works and that the plaintiffs are obliged to provide something more than a total estimate of those costs. The litigation is more than five years old and the plaintiffs have chosen to proceed by repairing the first apartment block in order to garner a greater understanding of the breadth and nature of the building defects. That remediation is near completion, and it is to be expected that the plaintiffs will soon be in a position to make a much more
41 At [119].
42 At [118].
informed assessment of the remedial work required for the whole complex and the costs involved.
[37] A related consideration is the need to progress the proceeding in a way that provides the best means to rationalise its scope and provide for the possibility of resolution short of trial. The plaintiffs’ opposition to the provision of further particulars relating to their losses largely centres on an objection to providing repair costs to fix each defect. The difficulties of doing so, including the overlap of the remedial work required in respect of each defect, was viewed as a barrier to the provision of such information. However, all that can be expected to be provided at this stage are estimates.
[38] The original schedule annexed to the seventh amended statement of claim set out particulars of the various defects that were capable of being broadly categorised as falling under the headings of water egress, fire defects, and structural defects. As a result of Associate Judge Paulsen’s orders, the necessary work has now been undertaken to compile a further schedule setting out the scope of works to repair the four apartment blocks that make up the complex. Any costing of that schedule of works will no doubt have its limitations. However, when informed by the work that is currently being undertaken in respect of the first block, the plaintiffs should be able to make some reasonably accurate estimate in respect of each of the 19 categories set out in the latest schedule of the scope of works to repair the four blocks.
[39] Having regard to the stage at which the proceeding has reached, I am satisfied that, in order to fully and fairly inform the Council of the liability it faces, the plaintiffs should provide a breakdown of the cost of rectification as it applies to each category of work. The work required is set out in the latest schedule in broad terms and the associated cost of carrying out that described work will also necessarily have to be approximate. In order to provide the best opportunity to supply the most accurate information, such further particulars need not be furnished until 31 July 2021. It is anticipated that work on the first apartment block will have been completed by that time.
Result
[40] The application for review is granted. The additional described particulars regarding the cost of remedial work are to be provided no later than 31 July 2021.
[41]Costs are reserved.
Solicitors:
Grimshaw & Co, Auckland
C M Meechan Queen’s Counsel, Auckland
1
11
0