Body Corporate 423090 v QBE Insurance (International) Limited

[2022] NZHC 1075

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000836

[2022] NZHC 1075

BETWEEN

BODY CORPORATE 423090

Plaintiff

AND

QBE INSURANCE (INTERNATIONAL) LIMITED

First Defendant

QBE INSURANCE (AUSTRALIA) LIMITED

Second Defendant

FORTIS CONSTRUCTION NZ LIMITED
Third Defendant

STRUCTEX HARVARD LIMITED
Fourth Defendant

CALIBRE CONSULTING LIMITED
Fifth Defendant

C1 GLOUCESTER STREET LIMITED
Sixth Defendant

ERNEST FREDERICK MICHAEL DUVAL
Seventh Defendant

STUDIO2 LIMITED

Eighth Defendant

Hearing:

16 May 2022

Appearances:

I J Thain and M J Bell for Plaintiff

C R Langstone, V S Wethey and H R Birch for First and Second Defendants
Also in Attendance: Ms C Tempest (QBE Representative)

Judgment:

16 May 2022

BODY CORPORATE 423090 v QBE INSURANCE (INTERNATIONAL) LTD [2022] NZHC 1075 [16 May
2022]

ORAL RESULTS JUDGMENT OF EATON J

(Reasons to follow)

[1]    The plaintiff seeks leave to file a fourth amended statement of claim. The application is opposed on the grounds amendment is not in the interests of justice and it will cause significant prejudice to the defendant, and further, that what has been termed the “further works” claim which was included for the first time in the fourth amended statement of claim, has been improperly pleaded. In the alternative, the defendant applies to strike out the “further works” claim on the ground that it is time- barred.

[2]    I accept that the belated inclusion of the “further works” claim does cause prejudice to the defendant. At the very least, in distracting counsel both on the eve and at the commencement of this trial against a background of belatedly disclosed expert evidence. I accept that until very recently the defendant did not know that the “further works” costs claim formed part of the claim it is being asked to face. However, on balance I do not find that the prejudice that is suffered by the defendant is at a level of significance such that the interests of justice require leave to be refused.

[3]    In reaching that view, I am conscious that generally the fourth amended statement of claim does refine and simplify the matters in dispute in this case. Further, that the defence expert, Mr Slater, has already reviewed and in his evidence, I am told, refers to the disputed invoices that form the basis of the “further works” claim, and, also that this trial will not be sitting next week which will provide some relief to counsel.

[4]    Whilst I do have sympathy for the defendant, in my view, the issue in terms of the leave application is more appropriately resolved in the costs context.

[5]    At this stage I do not consider it appropriate to strike out the “further works” claim as time-barred. I am going to reserve my decision in relation to that and the matter can be the subject of express pleadings and then argued further either during the course of the trial and determined then, or in closing if necessary.

[6]    So, I will grant leave to the plaintiff to file the fourth amended statement of claim and I will provide full reasons at a later date.

...................................................

Eaton J

Solicitors:

DLA Piper, New Zealand, Auckland - Plaintiff

Fee Langstone, Auckland – First and Second Defendants