Body Corporate Number 368533 v Napier City Council

[2019] NZHC 2525

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2012-441-126

[2019] NZHC 2525

BETWEEN

BODY CORPORATE NUMBER 368533

Plaintiff

AND

NAPIER CITY COUNCIL

First Defendant

OTHERS

Second to Thirty Fifth Defendants/ Third Parties

Hearing:

17 July 2019

Counsel:

G Kohler QC and R Potter for plaintiff/respondent

B Cash and S Thyne for 7th and 8th defendants/applicants

Judgment:

4 October 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    Regrettably, memoranda from counsel for the 7th and 8th defendants dated 18 September 2019 and counsel for the plaintiff dated 19 September 2019 have only recently come to my attention. The need for the Court to respond is especially pressing as the pre-trial directions made on 28 May 2019 have the plaintiff serving its evidence very soon. Accordingly, this short judgment is being issued as a matter of urgency.

[2]    The background is an opposed interlocutory application by the 7th and 8th defendants for an order striking out aspects of the claims against them, or, alternatively, requiring the plaintiff further to particularise aspects of those claims. That application was argued on 17 July 2019. Following the hearing, I issued a minute that I trust was and remains self-explanatory, and which I now reproduce.

BODY CORPORATE NUMBER 368533 v NAPIER CITY COUNCIL [2019] NZHC 2525 [4 October 2019]

[1]The plaintiff is the body corporate associated with a residential development in Napier suing on its own behalf and on behalf of the unit title holders. There are a total of thirty-five defendants. Essentially, the plaintiff says that there are significant defects in the building for which the defendants bear responsibility. It is set down for a 10-week trial due to commence on 11 May 2020. Following a case management conference on 28 May 2019 I made a series of orders which were directed at dealing with all outstanding interlocutory matters and made timetabling orders through to trial.

[2]Those orders foreshadowed applications by the 7th and 8th defendants, respectively Lattey Civil Engineers Ltd and its principal, Mr Hugh Lattey, for orders striking out aspects of the claims against them or requiring the plaintiff to provide further and better particulars of aspects of the seventeenth amended statement of claim.

[3]Such an application was filed and served and it was set down for hearing today. The application was fully argued by counsel for both parties. However, during the course of the morning and over the luncheon adjournment counsel sensibly discussed how the plaintiff’s substantive claim against the 7th and 8th defendants might be progressed and if possible reduced in its scope. As a result, counsel inform me that their clients propose to pursue those discussions over the next month to six weeks and while they continue I am invited to withhold an interlocutory judgment on this application. I am quite prepared to do that. Frankly, these matters should be sorted out as between the parties, their solicitors and counsel.

[4]In any event, I am told that by 9 August the 7th and 8th defendants are to go back to the plaintiff with information concerning the scope of their involvement in the construction of the development and that by 28 August the plaintiff is to revert to the 7th and 8th defendants indicating the extent, if any, that the plaintiff accepts the position advanced by them. This, counsel confidently predict, will narrow or eliminate the need for a decision on this interlocutory application.

[5]At the request of the parties therefore I adjourn this interlocutory matter. Mr Kohler is to keep the Court informed of progress as necessary and that the parties will let the Court know after 28 August 2019 if a judgment on this interlocutory application is required and if so the necessary scope of the same.

[3]    The process foreshadowed in my minute has apparently taken place. I am informed that the upshot is that this has not resulted in the progress counsel anticipated. In short, the plaintiff does not accept the position adopted by the 7th and 8th defendants and set out in an affidavit sworn on 9 August 2019 by the 7th defendant’s former director, the 8th defendant, Mr Hugh Lattey, as to the scope of the work carried out by the 7th defendant.

[4]    In their memorandum of 18 September 2019, counsel for the 7th and 8th defendants say that as a result of the failure of the parties’ informal attempt to resolve these matters “… we request his Honour to deliver his judgment on most of the particulars sought in the application”.

[5]    From that I am taking it that the 7th and 8th defendants no longer seek to advance an argument that any aspects of the claim should be struck out, and are focussing on particularisation.

[6]    Counsel for the 7th and 8th defendants invite me to  receive  and  consider  Mr Lattey’s affidavit. I do not think that that would be appropriate. It was not before the Court at the time that the matter was argued. If it were to be received at this late stage, it would be necessary for the application to be re-argued at least in part so as to give the plaintiff a fair opportunity to respond. I have done little more than glance at Mr Lattey’s affidavit. To the extent that I comment on its contents in this judgment, my comments are based on counsel’s submissions.

[7]    The  first  renewed  request  as  set   out  in  Mr  Cash’s  memorandum  of   18 September 2019 is in these terms:

What work Lattey did – items 1 to 3 of part 1 of the schedule

Defect 8.2: panel end mounted weld plates – item 4 of part 1 of the schedule

Defect 8.3 to 8.5, 13 and 15 – strike out/particulars in part 2 of the schedule

8.All of the above are related and are about establishing with clarity what work the Plaintiff alleges the Seventh and Eighth Defendants did and what acts the Seventh and Eighth Defendants allegedly did or did not do during that work to cause the alleged defects claimed by the Plaintiff. A decision is now required on these matters and they are even more important following the process of Mr Lattey swearing his affidavit and the Plaintiff then, without good reason, failing to amend the claim to reflect what work the Seventh Defendant actually did.

9.If the Plaintiff is alleging that:

(a)the Seventh and Eighth Defendants manufactured, supplied and installed every single precast panel at the development and every kind of weld plate throughout the development (which at the hearing it appeared the plaintiff was saying, although it never stated the matter with that clarity); and

(b)acts or omission of the Seventh and Eighth Defendants in carrying out the above work have caused all of these alleged above defects;

Then the Plaintiff should make that crystal clear and set out:

[(c)] precisely what work it says the plaintiff did (e.g.  is  the plaintiff alleging that Lattey, a precast concrete manufacturer and supplier, manufactured, supplied and installed all the different kinds of weld plates, the work of steel fabricators, or only that it installed parts supplied by others?);

[(d)] the basis on which it alleges the Seventh and Eighth  Defendants did that work;

[(e)] precisely what acts or omission of the Seventh and Eighth Defendants allegedly caused these defects (e.g. is the plaintiff claiming that the Seventh and Eighth defendants did not properly paint the weld plates, as is alleged in the schedule of defects, or is that only an allegation against the painter?).

[8]    As I understand the plaintiff’s position as explained during the course of the argument  on  17  July  2019,  and  as  restated  in  Mr  Kohler’s  memorandum  of 19 September 2019, it is that, as matters stand, the plaintiff does indeed take the position set out in paragraphs 9(a) and (b) above.

[9]    The exchanges between the plaintiff and the 7th and 8th defendants since the hearing seem, as Mr Kohler says, not to have concerned the particularisation of the claim as much as whether the plaintiff will be able to establish all or any of its allegations at trial.

[10]   I am not prepared to make the orders sought by the 7th and 8th defendants as set out in Mr Cash’s memorandum at 9(c), (d) and (e) above for two reasons:

(a)First, those requests appear to me to go beyond particularisation and stray into the area of evidence. It is elementary that a party must plead the factual allegations that it says give rise to its claim or defence, but must not plead evidence;

(b)Second, in two weeks time the plaintiff is obliged to serve its evidence. I do not think it would be helpful for the plaintiff (or, for that matter, the 7th or 8th defendants) to be distracted by an order to particularise

the claim when the important thing is that the plaintiff complies with the timetable and serves its evidence on 18 October 2019, at which point the 7th and 8th defendants will obtain all of the information they seek, at least insofar as the plaintiff is able to provide it. I observe also that the 7th and 8th defendants will have four months (albeit over a period which includes the Christmas and New Year break) to review that evidence and respond.

[11]   The 7th and 8th defendants’ second renewed request relates to item 6 of their schedule and the costs of rectifying the defects identified in items 8.2–8.5 of the first schedule to the seventeenth amended statement of claim.

1. The 7th and 8th defendants seek particulars of:

(a)The alleged cost of each individual defect pleaded against the 7th and 8th defendants;

(b)A breakdown of how that cost is calculated.

[13]   Whilst this is a more conventional request  for particulars,  the points made  in [10](b) above also apply.

[14]   I decline to make an order requiring the plaintiff to provide the further and better particulars sought, essentially because in my view such an order would derail the parties’ preparation for the 10-week trial scheduled to commence on 11 May 2020.

[15]Costs are reserved.

Associate Judge Johnston