Body Corporate 417948 v Watts & Hughes Construction Limited

[2018] NZHC 2692

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000557 [2018] NZHC 2692

BETWEEN

BODY CORPORATE 417948

First Plaintiff

ROSS NOEL BRYANT & ORS Second Plaintiffs

AND

WATTS & HUGHES CONSTRUCTION LIMITED

First Defendant

TAURANGA CITY COUNCIL Second Defendant

AVERY TEAM ARCHITECTS LIMITED Third Defendant

MPM PROJECTS (2003) LIMITED Fourth Defendant

.../cont over

Hearing:	17 October 2018
Counsel:	AK Hough and M Samountry for Plaintiffs AV Davison for Second Defendant
Judgment:	19 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 19 October 2018 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Grimshaw & Co, Auckland. Rice Speir, Auckland.

BODY CORPORATE 417948 v WATTS & HUGHES CONSTRUCTION LTD [2018] NZHC 2692 [19 October

2018]

GMR HOLMAC LIMITED

Fifth Defendant/First Third Party

TILE TRENDS LIMITED Second Third Party

ARMSTRONG PLUMBING (BOP) LIMITED

Third Third Party

SWITCH ELECTRICAL SERVICES (HAMILTON) LIMITED

Fourth Third Party

AIR MARK SERVICE LIMITED Fifth Third Party

SWITCH ELECTRICAL SERVICES LIMITED

Sixth Third Party

HOLMES STRUCTURES LIMITED Seventh Third Party

OMAHA INVESTMENTS NO.1

LIMITED

Eighth Third Party

ROBERT JAMES FOSTER Ninth Third Party

BAY OF PLENTY ASPHALT LIMITED Tenth Third Party

The issue

[1]      The plaintiffs’ residential complex leaks. I allocated a trial date of 13 July 2020 for their associated claim (for 10 weeks).  It is unlikely repairs will then be finished. Indeed, they may not be finished until July 2021, or later. The plaintiffs wish to appeal my scheduling decision to the Court of Appeal.  They want to try the case once the final cost of repairs is known, so, well after July 2021.  The second defendant—the Tauranga City Council—opposes the proposed appeal. The other parties abide or have taken no steps.

[2]      The plaintiffs argue leave is not required for their appeal.

Is leave required?

[3]      The relevant provision is s 56(3) of the Senior Courts Act 2016.  In context, it reads:

56   Jurisdiction

(1)   The Court of Appeal may hear and determine appeals— (a)   from a judgment, decree, or order of the High Court: (b)   under the Criminal Procedure Act 2011.

(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

…

(3)   No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

[4]      Relevant also is the definition of an interlocutory application in s 4 of the same

Act:

interlocutory application—

(a)   means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i)    an order or a direction relating to a matter of procedure; or

(ii) in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

(b)   includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies.

[5]      The plaintiffs contend s 56(3) does not apply because my decision was not made on an interlocutory application. They note r 7.6(2) of the High Court Rules 2016 requires a Judge to allocate a trial when satisfied it can be readied for trial. Rule 7.6(2) lies in that part of the High Court Rules concerned with case management, not interlocutory applications.

[6]      The plaintiffs also contend the phrase “interlocutory application” in s 56(3) should be qualified by the corresponding definition in r 1.3 of the High Court Rules, hence as an application made in accordance with rr 7.19 or 7.41.  This because s 147 of the Senior Courts Act deems the High Court Rules to be part of the Act.  Rule 7.19 requires an interlocutory application be made in particular form. And, r 7.41 permits oral interlocutory applications only in certain circumstances.  The plaintiffs observe the second defendant’s application for allocation of a prompt trial was ventilated in a memorandum of counsel—not a formal interlocutory application—and brought after interlocutory applications ought to have been filed because of a timetable order.

[7]      Leave is plainly required.  The second defendant applied for the allocation of a trial before the case management conference, and prosecuted that application at the conference. The plaintiffs opposed the application. I granted it. True, the application was contained in a memorandum of counsel, and ought to have been filed a little earlier.1   But, s 56(3) of the Senior Courts Act appears unconcerned with technicality. This because the provision is intended to reduce the volume of appeals to the Court of

1      Interlocutory applications should have been filed by 14 May 2018.  The Council’s memorandum was filed on 24 July 2018.

Appeal from interlocutory decisions of this Court,2 which also explains why the Act defines an interlocutory application so broadly.  Allocation of a trial is a direction relating to a matter of procedure, and therefore caught by that broad definition.

[8]      Implicit to this conclusion is the allied one the deeming provision, s 147, does not operate as the plaintiffs contend.  Section 147 exists to give the High Court Rules statutory force, not to create uncertainty through potentially overlapping definitions.

[9]      The conclusion leave is required is consistent with the decision of Clark J in Greenpeace of New Zealand Incorporated v Minister of Conservation, in which Greenpeace sought to appeal the Judge’s decision to decline an urgent hearing.3

Her Honour observed:4

Section  56(3)  of  the  Senior  Courts Act  2016  is  not  intended to  confer jurisdiction to appeal decisions of the kind in question, a scheduling decision which I do not accept has the effect of determining or affecting rights or liabilities at issue.

Should leave be granted?

[10]     The parties agree applicable principle is that identified by Fitzgerald J in

Finewood Upholstery Ltd v Vaughan.5   In short:

(a)A high threshold exists.   An  allegation of error of law or fact is insufficient. Rather, an applicant must identify an arguable error of law or fact.

(b)Leave should be granted only when circumstances warrant further delay.

(c)The alleged error should be one of general or public importance, or otherwise of sufficient importance to the applicant to outweigh its lack of precedential significance.

2      Ngai Te Hapu v Bay of Plenty Regional Council [2018] NZCA 291.

3      Greenpeace of New Zealand Incorporated v Minister of Conservation [2017] NZHC 3114.

4 At [11].

5    Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.

[11]     It is common ground (b) poses no impediment, as an appeal could be heard well before trial.

[12]     As to (a) and (c), the plaintiffs contend an arguable error of law arises, because a plaintiff in this situation has “a right” to repair before trial, or at least a right to make that election.  The same point is said to be one of general importance, and of “great precedential value”. The plaintiffs also submit they “stand to lose substantial sums of money” if the case is tried based on estimated repair costs.

[13]     These arguments are unpersuasive.  The last is unsupported by evidence, and speculative.  The case cited in support of the alleged right does not support it.  In Body Corporate 366567 v Auckland Council the plaintiffs opposed allocation of a trial on the basis the pleadings might require amendment.6     Fogarty J dismissed the application. The Judge said this:7

Essentially a plaintiff in these proceedings has to choose between going to trial seeking the remedy of general damages or going to trial after all the work is remediated and seeking special damages (the actual cost).

[14]     This observation does not support the existence of a right to determine when a trial should be held. It is simply a recognition of the obvious choice any plaintiff must make in a case of this nature.   Context puts this beyond doubt: the plaintiffs of Body Corporate 366567 did not propose to repair their complex before trial. The case is distinguishable for the same reason.

[15]     No  point  of  law  arises,  yet  alone  one  of  general  or  public  importance. Contested fixture allocations typically entail an assessment of competing interests against specific factual matrices—not more.  And as observed, the contention the plaintiffs will suffer significant prejudice is unsupported by evidence and speculative.

[16]     Only one factor supports leave.  My decision will affect the way the plaintiffs present their case.  But, the estimate of the costs of repairs is detailed and specific:

$16,075,928.50.  Moreover, it would be open to the plaintiffs to seek an adjournment

6      Body Corporate 366567 v Auckland Council [2017] NZHC 1520.

7 At [23].

if information becomes available before trial that proceeding on estimated costs would materially compromise their interests.

Result

[17]     The application is dismissed.

……………………………..

Downs J