Body Corporate 89408 v MacRitchie - [2016] NZHC 844

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-545

CIV-2015-485-048 [2016] NZHC 844

BETWEEN
BODY CORPORATE 89408 AND ORS

Plaintiffs

AND

JOHN MACRITCHIE First Defendant

DONALD JOHN MACRITCHIE Second Defendant

DAVID JAMES UNDERWOOD Third Defendant

ISP CONSULTING ENGINEERS LIMITED

Fourth Defendant

WELLINGTON CITY COUNCIL Fifth Defendant

Hearing: 22 February 2016

Counsel:

A K Hough and P H Bremer for Plaintiffs
R C Woods for Fourth Defendant
S H Macky for Fifth Defendant

Judgment:

29 April 2016

JUDGMENT OF CLIFFORD J

Introduction

[1] These are consolidated proceedings involving a dispute relating to the development of the Townsend Apartments at 26-–32 Allen Street, Wellington (the Apartments). The plaintiffs are the body corporate and the individual owners of the
Apartments (together, the Owners). Following consolidation, the Owners filed an

BODY CORPORATE 89408 v MACRITCHIE [2016] NZHC 844 [29 April 2016]

amended, consolidated, statement of claim. That statement of claim omitted certain factual allegations against the fourth defendant, ISP Consulting Engineers Limited, that had been pleaded in CIV-2010-485-545. Shortly thereafter, the Owners filed a second consolidated statement of claim, including those allegations. ISP and the fifth defendant, the Wellington City Council, then filed amended statements of defence, including affirmative defences against the re-pleaded allegations based on the expiry of the limitation period.

[2] This is an application under rule 1.9 of the High Court Rules by the Owners for the amendment of the consolidated statement of claim to include the omitted, and then re-pleaded, factual allegations. That application is opposed by ISP and the Council.

Facts

[3] The Apartments were developed in 1998 and 1999 by the renovation and extension of an existing building. The first, second and third defendants were the developers of the Apartments (the Developers). ISP, the fourth defendant, was the engineer for the project. The Council, the fifth defendant, was the local authority. The Apartments are a leaky building.

[4] In or about August 2005 individual owners of the Apartments began lodging individual claims under the Weathertight Homes Resolution Services Act 2002. A multi-unit claim was registered in 2007 under the Weathertight Homes Resolution Services Act 2006 (the WHRS 2006). ISP was not a party to any of those claims. The Council was a party to all of them.

[5] After filing their multi-unit claim the Owners decided, as is provided for by the WHRS 2006, to undertake the necessary work to make the Apartments weather tight, and then to seek adjudication. During repair work in 2010 structural issues were discovered to exist. As the WHRS tribunal’s jurisdiction is limited to weathertightness issues, the Owners then filed a separate claim in the High Court against the Developers, the Council and – for the first time – ISP for structural damage. They did so in some haste, to avoid limitation issues. That claim is CIV-2010-485-545 (the 2010 Structural Proceedings). An amended statement of

claim was filed in the 2010 Structural Proceedings in December 2012 (the 2012

Structural SC).

[6] In the course of the 2010 Structural Proceedings, the Owners considered…

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: [2016] NZHC 844
Decision Date: 29 April 2016

CaseChat Overview and Summary

Body Corporate 89408 and the owners of the Townsend Apartments (the Owners) sought leave to amend their consolidated statement of claim to include certain allegations that had been omitted from the first consolidated statement of claim and then re-pleaded in a second consolidated statement of claim. The amendment was opposed by ISP Consulting Engineers Limited and the Wellington City Council (ISP and the Council). The Owners sought leave to amend pursuant to rule 1.9 of the High Court Rules. That rule permits amendment of pleadings at any time to determine the real controversy between the parties. ISP and the Council submitted that the amendment would introduce a fresh cause of action that was time-barred. They argued that the amendment was not permitted by rule 1.9. The Court considered that the amendment did not introduce a fresh cause of action and was permitted by rule 1.9. The Court granted the Owners leave to amend their consolidated statement of claim.

Orders