Body Corporate 449665 v CMP Construction Limited - [2023] NZHC 449

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2335

[2023] NZHC 449

IN THE MATTER OF negligence

BETWEEN

BODY CORPORATE 449665

First Plaintiff

BISHOP GROUP LIMITED
Second Plaintiff

AND

CMP CONSTRUCTION LIMITED

First Defendant

AUCKLAND COUNCIL

Second Defendant

Hearing: 8 November 2022

Counsel:

T M Bates for plaintiffs

P J Dale KC for first defendant
No appearance for second defendant

Judgment:

9 March 2023

JUDGMENT OF ASSOCIATE JUDGE TAYLOR

[Summary judgment/strike out]

This judgment was delivered by me on 9 March 2023 at 4pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
T M Bates & Co, Auckland for plaintiffs
Knight Coldicutt Limited, Auckland for defendants

BODY CORPORATE 449665 v CMP CONSTRUCTION LTD [2023] NZHC 449 [9 March 2023]

Introduction

[1] The first defendant, CMP Construction Ltd (CMP), was the builder of a block of apartments at the Victoria Park Market complex.

[2] The plaintiffs are the body corporate (Body Corporate) for the block of the apartments and the registered proprietor of one of the principal units within the complex. They claim against CMP in negligence in relation to a failing waterproof membrane that has allowed water ingress into the building.

[3] CMP seeks summary judgment or strike out of the plaintiffs’ claim against it, citing a limitation defence under the Limitation Act 2010.

Background

[4] This proceeding is about the construction of the roof terrace in the Victoria Park Market complex built between 2011 and 2013. The plaintiffs claim the roof terrace was defective in that its waterproof membrane was installed incorrectly. They say the roof terrace has degraded and requires substantial repairs.

[5] The plaintiffs say CMP, as the head contractor for the building project, was negligent in that it contracted Aquastop Ltd to complete the waterproof membrane, and that it bears the risk of loss resulting from Aquastop Ltd’s failure to exercise reasonable skill and care in doing so.

[6] CMP denies the claim and says further that the plaintiffs were contributorily negligent.

Notice of application for summary judgment or strike out

[7]CMP seeks orders:1

(i)Entering summary judgment in favour of the first defendant against the plaintiffs in respect of all causes of action.

1 Notice of application by first defendant for (1) summary judgment; alternatively (2) strikeout dated 1 August 2022 at [1].

(ii)Alternatively striking out the plaintiffs’ claims against the first defendant.

(iii)Costs.

[8]The grounds on which the orders are sought are:2

(a)The building work the subject of the plaintiffs’ claim was completed between January 2013 and 23 November 2013.

(b)By an email dated 20 August 2018 the plaintiffs agent confirmed its awareness of the defects the subject of the plaintiffs’ statement of claim, or at least with sufficient knowledge that there was a likelihood of loss, that the first defendant was one of the parties that might be responsible, and that expert advice should be required.

(c)As a consequence the late notice limitation period referred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 449
Decision Date: 9 March 2023

CaseChat Overview and Summary

Body Corporate 449665 and Bishop Group Limited, the plaintiffs, brought a negligence claim against CMP Construction Limited, the first defendant, in relation to water ingress in a block of apartments at the Victoria Park Market complex. The plaintiffs claim CMP was negligent in its role as head contractor for the building project, alleging it was responsible for the defective installation of a waterproof membrane by Aquastop Ltd. CMP seeks summary judgment or strike out of the claim against it, citing the limitation defence under the Limitation Act 2010. The court must decide the burden of proof for establishing the late knowledge date under s 14 of the Limitation Act, and at what date the plaintiffs acquired late knowledge. The court found the burden of proving that the statutory exception for late knowledge does not apply rests with CMP. The plaintiffs must establish that it is reasonably arguable the claim was brought within three years of the late knowledge date. In this case, the court found it was reasonably arguable by the plaintiffs that the earliest date upon which they acquired late knowledge was October/early November 2019, and not 20 August 2018. Accordingly, CMP has not discharged the burden of proving for the purposes of s 11(3) of the Limitation Act that the plaintiffs acquired late knowledge earlier than three years before the proceedings were filed. CMP’s applications for summary judgment and/or strike out are dismissed. Costs are reserved.

Orders