Body Corporate 422631 v Queenstown Lakes District Council

[2023] NZHC 2023

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-16

[2023] NZHC 2023

BETWEEN

BODY CORPORATE 422631

First Plaintiff

KAWARAU VILLAGE HOLDINGS LIMITED

Second Plaintiff

AND

QUEENSTOWN LAKES DISTRICT COUNCIL

Defendant

DE GEEST CONSTRUCTION LIMITED
First Third Party (Discontinued)

DE GEEST BATHROOMS LIMITED (IN LIQUIDATION)

Second Third Party

Hearing:

27 July 2023

Appearances:

T J Rainey and K R Lydiard for Plaintiff M L Rhodes for Defendant

K L Rusher for liquidators of Second Third Party

Judgment:

1 August 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Leave to join two third parties and application for non-party discovery)

BODY CORPORATE 422631 v QUEENSTOWN LAKES DISTRICT COUNCIL [2023] NZHC 2023

[1 August 2023]

[1]                 Queenstown Lakes District Council (QLDC) has applied for leave to join two third parties and for non-party discovery against the liquidators of Clark Brown Architects Limited (in liquidation).

[2]                 This proceeding concerns a 98-unit development in Queenstown (the building). The allegation is that the building is not watertight. The proceeding was issued some years ago and is for hearing at the start of July 2024 – just under a year away. QLDC wishes to join Naylor Love Limited (Naylor Love) who was the head contractor in respect of the construction of the building, and Holmes Fire and Safety Limited (Holmes), the fire consultant.

[3]                 The application is unopposed by the plaintiffs, with the caveat that the plaintiffs do not want the fixture date put at risk through the joinder.

[4]                 Given the proposed third parties’ involvement in the construction of the building, QLDC says it is highly likely that if it has liability then Naylor Love and Holmes will be joint tortfeasers. QLDC says its claim will involve the same factual issues and evidence as will have to be canvassed during the hearing.

[5]                 QLDC acknowledges some delay in bringing this application, albeit it says that with regards to the fire consultant, it only recently learnt of the full extent of Holmes’ involvement. The delay against the head contractor, Naylor Love, is not really explained.

[6]The proposed third parties will have the ability to challenge their joinder.

[7]                 Given the applications are unopposed by the plaintiffs and given the direct involvement both proposed third parties had, there is an order pursuant to r 4.4 of the High Court Rules 2016 granting leave to QLDC to issue a third party notice against Naylor Love Limited and against Holmes Fire and Safety Limited.

[8]                 Counsel for QLDC proposed a timetable for the issue of the third party notices and for subsequent steps. That timetable will accompany this judgment. I make timetable directions in terms of that proposed timetable. Mr Rainey, counsel for the Body Corporate 422631 (the Body Corporate) was content with that timetable.

[9]                 I advised counsel I was mindful that this timetable was set without hearing from the new parties. Leave is reserved for them to apply to vary the timetable but in such an application they will need to detail why an extension is required with supporting evidence. Again, the Court’s priority will be to preserve the 8 July 2024 hearing date.

[10]             The second application before the Court is the application for non-party discovery. That application was ultimately unopposed.

[11]             Accordingly, there is an order in terms of paragraph 1(a) and 1(b) of the application for non-party discovery dated 28 June 2023.

[12]             I reserve the question of whether the respondents should pay the costs of the application. Ms Rusher who appeared on agency instructions for the liquidators was not in a position to address costs. Given the order is subject to the usual condition that QLDC is to pay the respondents’ reasonable costs and expenses in complying with the orders, Ms Rusher suggested that there might  be the scope  for  a set-off between  the costs that might be payable pursuant to the need for QLDC to bring the application and the costs QLDC would have to pay in respect of compliance.

[13]             I leave that to counsel to address. If agreement in that regard cannot be reached then Ms Rusher or her instructing solicitors are to file submissions as to why orders as to costs should not be made, those submissions to be not more than five pages. QLDC says it should not have been necessary to bring the application, it was the successful

party in bringing the application and therefore costs should follow the event. Any opposition  will   need  to   address  why  the  application  was  not   deal   with  on   a co-operative basis.

Associate Judge Lester

Solicitors:

Hornabrook Macdonald, Auckland (for Plaintiff) Wynn Williams, Christchurch (fir Defendants)

Copy to counsel:

T J Rainey, Barrister, Auckland (for Plaintiffs) K R Lydiard, Barrister, Auckland (for Plaintiffs)