Campbell v Mike Wilton Consulting Limited (in liq)
[2025] NZHC 3242
•29 October 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-511
[2025] NZHC 3242
BETWEEN DARRYL ARTHUR CAMPBELL and ANITA KAY CAMPBELL
Plaintiffs
AND
MIKE WILTON CONSULTING LIMITED
(in liquidation) First Defendant
MIKE WILTON
Second DefendantADRIAN COLLIS
Third DefendantCHRISTCHURCH CITY COUNCIL
Fourth Defendant
Hearing: 13 October 2025 Appearances:
D J C Russ for Plaintiffs
A J McKenzie for Second Defendant P N Allan for Third Defendant
A C Harpur and N Ravaji for Fourth Defendant
Judgment:
29 October 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 29 October 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
CAMPBELL v MIKE WILTON CONSULTING LIMITED (in liquidation) [2025] NZHC 3242 [29 October 2025]
[1] Mr and Mrs Campbell had architects prepare a design for a commercial building to be constructed on their property and sought assistance from Mr Wilton to complete the structural design of the building.1 Messrs Wilton and Collis were involved in the work. Mr Collis also prepared and signed producer statements submitted to the Christchurch City Council (the Council) for the issue of a building consent and code compliance certificate.
[2] The Campbells allege that the building was not designed to an adequate earthquake standard and have commenced this proceeding against Mike Wilton Consultancy Ltd (in liq) (the company), Messrs Wilton and Collis and the Council seeking to recover the cost to remediate the building. The Council has filed cross- claims against Messrs Wilton and Collis.
[3] The Campbells’ claims against Messrs Wilton and Collis are in negligence. In response, they contend that the work was performed pursuant to a contract between the Campbells and the company, and they did not owe the Campbells a duty of care in tort so the claims cannot succeed.
[4]The applications before me are:
(a)applications by Messrs Wilton and Collis for leave to apply for summary judgment against the Campbells;
(b)applications by Messrs Wilton and Collis for summary judgment against the Campbells; and
(c)an application by Mr Collis for summary judgment against the Council.
[5] There are many disputed factual and legal issues arising in this case, but the key issues for present purposes are:
1 There is a factual issue (although not apparent on the pleadings) of whether the Campbells contracted with Mr Wilton personally or with his company, the first defendant, Mike Wilton Consulting Ltd (in liq).
(a)whether the Court should grant Messrs Wilton and Collis leave to apply for summary judgment; and
(b)if so, whether it is arguable that Messrs Wilton and Collis owed the Campbells a duty of care in tort in relation to the provision of structural design services.
Background
[6] The Campbells are trustees of a trust which owns a commercial property at Christchurch. They have had a long association with Mr Wilton who is a structural engineer.
[7] Mr Wilton is a director of the company which is now in liquidation. He was a Chartered Member of Engineering New Zealand. Mr Collis was an employee of the company and a Chartered Professional Engineer.
[8] In 2018 the Campbells had architects prepare a design for a commercial building to be constructed on their property and sought assistance from Mr Wilton to complete the structural design of the building. The Campbells’ pleading is that they contracted with the company. However, Mr Campbell’s evidence is that he engaged Mr Wilton personally and did not learn of the existence of the company until after the work was performed. Messrs Wilton and Collis say the company was contracted to perform the work.
[9] It appears both Messrs Wilton and Collis were involved in preparing the structural design of the building. The work included preparing loading calculation sheets, a certificate of design work, plans and drawings. During construction they both attended the site at times and completed engineering construction monitoring inspections.
[10] Mr Collis issued a producer statement PS1 (Design) dated 28 June 2018 (the PS1). The PS1 stated that Mr Collis believed on reasonable grounds the building, if constructed in accordance with the drawings, specifications, and documents provided/listed, would comply with Acceptable Solution B1/AS1 of the Building Code
(as contained in sch 1 of the Building Regulations 1992), and that Mr Collis had the necessary competence to undertake the design. The PS1 was provided to the Council on 5 July 2018 in support of an application for building consent which was issued on 31 October 2018.
[11] Mr Collis also prepared and signed a producer statement PS4 (Construction Review) dated 20 July 2020 (the PS4). The PS4 stated that Mr Collis had reviewed the construction of the building and believed on reasonable grounds that the building work had been completed in accordance with the requirements of the building consent with respect to cls B1 and B2 of the Building Code, and that he had the necessary competence to undertake the construction review. The PS4 was provided to the Council on 29 March 2021 in support of an application for a code compliance certificate which issued on 3 June 2021.
[12] As a result of intervention by Engineering New Zealand, Gary Hughes, a Chartered Professional Engineer, provided a report on 28 February 2023 concluding that the structural engineering design and construction of the building was defective and that it had been constructed to a seismic rating of less than 10 per cent of the New Building Standard.
[13] The Campbells’ claims against the company are for breach of contract and in tort for negligence. The allegations made include that it was an express term of the contract between the Campbells and the company that the building would be designed to an earthquake standard of 100 per cent of the New Building Standard. The company went into liquidation and I understand there is little prospect of any recovery from it.
[14] The Campbells sue Messrs Wilton and Collis and the Council in negligence. For reasons I shall come to, the pleadings are unsatisfactory.2 However, I understand the case the Campbells wish to pursue is that Messrs Wilton and Collis personally performed the building design work and failed to provide those services with reasonable care and skill, such that the building is earthquake prone causing loss represented by the cost to repair it. I understand there is at least the prospect that a
2 It is not necessary for me to comment on the pleading against the Council.
claim against Mr Wilton may be formulated on the basis that he breached a duty of care to supervise the performance of Mr Collis’s work.
[15] The Council has filed cross-claims against Messrs Wilton and Collis. For present purposes, it is sufficient to note that the first cross-claim against Mr Collis seeks contribution from him on the basis that he is a concurrent tortfeasor with the Council. The Council’s second and third causes of action allege Mr Collis was negligent in relation to the preparation and content of his producer statements submitted to the Council.
The statement of claim
[16] The Campbells’ sole causes of action against both Messrs Wilton and Collis is in negligence. The pleading of these causes of action is inadequate for several reasons but, overall, it appears that insufficient consideration has been given to the elements of the cause of action pleaded and how those elements are to be proved.
[17] The first point, as I have noted, is that the Campbells plead that their contract was with the company, but in opposition to these applications they assert they contracted with Mr Wilton personally and had no knowledge of the company at relevant times. This is a fundamental matter, and if the Campbells intend to take the position that they contracted with Mr Wilton personally that needs to be pleaded.
[18] Second, the duty said to have been owed is “a duty to design the Building to 100% New Building [S]tandard”. That is, in effect, an assertion that Messrs Wilton and Collis were obliged to design the building in accordance with the express terms of the alleged contract between the Campbells and (as pleaded) the company. This pleading misunderstands that a claim in negligence is concerned with a failure to take reasonable care and is quite different in nature from an action in contract. As Cooke J noted in Palmer v Hewitt Building Ltd, claims in contract and negligence conceptually address different issues.3
3 Palmer v Hewitt Building Ltd [2021] NZHC 1460 at [55].
[19] Third, there are few particulars of what work Mr Wilton and/or Mr Collis are said to have personally performed or when the work was performed. To the extent there is reference to work, it is in general terms and there is a failure to differentiate work performed by Mr Wilton from work performed by Mr Collis. Throughout the Campbells plead that Messrs Wilton and Collis together performed work or have been responsible for work, when it appears on the evidence they performed different tasks.
[20] Fourth, it is not sufficiently pleaded how it is said Messrs Wilton and Collis breached their duty of care. There is a broad pleading they were “negligent in the design of the building” and that as a result “the Building is less than 100% of New Building Standard”, but no attempt has been made to identify specifically what work was done negligently and why that is the case or how it was causative of the loss.
[21] As I have noted, I also understand that the claim against Mr Wilton may be made on the basis of a breach of reasonable care to supervise Mr Collis’s work, but there is nothing in the statement of claim which presently suggests that as a basis of claim.
Leave to apply for summary judgment
[22] Messrs Wilton and Collis require leave to apply for summary judgment against the Campbells because they did not apply for summary judgment at the time they filed their statements of defence.4 Mr Wilton filed his statement of defence on 10 December 2024, but did not apply for summary judgment until 3 June 2025 and did not apply for leave until 15 September 2025. Mr Collis filed a statement of defence on 16 December 2024, and applied for summary judgment on 30 May 2025 but did not apply for leave until 19 September 2025.
[23] There are no guideline principles in the High Court Rules 2016 for determining whether to grant leave to a plaintiff or defendant to apply for summary judgment out of time. The Court exercises its discretion in deciding whether or not to grant leave, and the party applying must show reasons why leave should be granted. Factors the Court has identified will be considered include whether the delay in applying is
4 High Court Rules 2016, r 12.4(3).
satisfactorily explained, the merits of the applicant’s case, and any risk of a miscarriage of justice in determining the summary judgment application at a later time. The Court should also not grant leave unless doing so will have the effect of avoiding prolonged proceedings.5
[24] In Stephens vs Barron, the Court of Appeal said it was important that leave be dealt with as a prior step to consideration of the merits of a summary judgment application for which leave is required, and that the criteria for granting leave need to be addressed even if the merits of the substantive application are an important aspect of the leave decision.6
[25] Both Messrs Wilton and Collis explain they did not apply for summary judgment earlier because the company was in liquidation and they did not have access to all relevant documents until after discovery had taken place. Both allege there is no prejudice to the other parties in granting leave.
[26] Messrs Wilton and Collis have not provided a compelling reason to grant them leave to apply for summary judgment. Fundamentally they propose to argue that the Campbells cannot establish the existence of a duty of care owed to them. There is no evidence, beyond their bare assertions, that they could not make their applications earlier due to a lack of access to the company’s documents. In any event, except for Mr Collis’s reliance upon the terms of the PS1 and PS4, which I am sure could have been obtained from the Council, neither placed significant reliance upon documentary evidence in support of their applications.
[27] Based on the knowledge Messrs Wilton and Collis had of the work, their involvement in it, and the reasons supporting the allegation that the building was earthquake prone, it could be anticipated that an application for summary judgment was unlikely to succeed because the Campbells’ contention they were owed a duty of care in tort is clearly arguable.
5 Bank of New Zealand v Fernando [2021] NZHC 1683, (2021) 25 PRNZ 786 at [20].
6 Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 34 at [13].
[28] To the extent the Campbells’ pleadings are inadequate the proper course open to Messrs Wilton and Collis was to apply for further particulars (or even to strike out the pleading) rather than applying for summary judgment.
[29] I am satisfied granting leave to Messrs Wilton and Collis to apply for summary judgment would not be in the interests of justice and leave to apply is refused. Notwithstanding that, I propose to go on and explain further why their applications for summary judgment could not succeed on the merits.
Summary judgment principles
[30]Rule 12.2(2) of the High Court Rules reads:
12.2 Judgment when there is no defence or when no cause of action can succeed
…
(2)The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[31] The principles that apply to a defendant’s application for summary judgment were set out in Stephens v Barron as:7
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would
7 Stephens v Barron, above n 6, at [9]; citing Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) (footnotes omitted).
otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
The grounds advanced for summary judgment against the plaintiffs
[32] Mr Wilton’s application for summary judgment asserts that all the engineering design work was undertaken pursuant to a contract between the Campbells and the company, at no stage did he assume or owe a duty of care to the Campbells in respect to the work and on that basis the claim cannot succeed.
[33] Similarly, Mr Collis’s application is made on the basis that he was an employee of the company, all relevant work was undertaken as between the Campbells and the company, and he never assumed nor owed a duty of care to the Campbells in respect of the work undertaken by him such that the claim against him cannot succeed.
[34] Whilst both applications rely upon Trevor Ivory Ltd v Anderson, in his written and oral submissions Mr McKenzie acknowledges the law has developed since that case was decided.8 While I understand he accepts whether Mr Wilton owed a duty of care is heavily fact dependant, he argues the Campbells have not pleaded how any of the work Mr Wilton undertook personally was either negligent or caused loss to them. His client’s position is summed up in the submission that the Campbells’ claim could not succeed because of their failure in the statement of claim to:
…sufficiently refine the duty of care and importantly link this duty to a negligent act committed by the second defendant himself that has caused loss to the plaintiffs.
[35] Recognising that the Court may allow a claim to be re-pleaded, Mr McKenzie submits it is unclear whether the shortcomings in the statement of claim can be resolved and the matter should be determined on the basis of the claim as pleaded. He says the claim as pleaded cannot succeed and Mr Wilton is entitled to summary judgment.
8 Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 (CA).
[36] For Mr Collis, Mr Allan argues that the position of company directors and employees in respect of personal liability for negligence was considered in Trevor Ivory Ltd v Anderson, and subsequent cases have not overruled the central reasoning that liability can only exist where there has been an assumption of responsibility for the work.9 He argues that here there has been no real allegation made by the Campbells that Mr Collis assumed personal responsibility and nor has any rationale been provided as to why such an assumption may be imputed to him.
[37] Mr Allan also submits that specific notes on the PS1 and PS4 documents underline that Mr Collis had not assumed or accepted personal responsibility for any part of his work and that the Campbells’ pleadings are generic and do not particularise exactly what Mr Collis is alleged to have done, let alone specify what he is said to have done negligently.
[38] Mr Allan further submits that if the Court accepts Mr Collis does not owe a duty of care to the Campbells then the Council’s cross-claim for contribution as a joint tortfeasor must also fail. He says the Council’s other claims based on negligence in the preparation of the PS1 and PS4 cannot succeed because of expressions of limitation contained in those documents. It is not necessary for me to consider this latter argument.
My assessment
[39] It is arguable that both Messrs Wilton and Collis owed the Campbells a duty of reasonable care in tort in respect to the performance of the engineering design work. The law has developed since Trevor Ivory Ltd, and was helpfully summarised in Palmer v Hewitt Building Ltd which concerned the liability of Mr Hewitt as the owner and sole director of a building company for the cost to repair deficiencies in their work.10 Cooke J summarised the position as follows:
[55] A builder has a personal duty of care to a building owner to meet the standards of a reasonable builder when engaging in building work. That is so whether they are an employee, a director of a company or are self-employed. That duty is different from the contractual obligation of the entity obliged to undertake the building work. An action in contract against the entity
9 Trevor Ivory Ltd v Anderson, above n 8.
10 Palmer v Hewitt Building Ltd, above n 3.
promising to perform the building work is concerned with a failure to perform contractual promises. An action in negligence against the individual builder is directed to compensation for the loss caused by the builder’s failure to build with reasonable care. Conceptually they address different issues. In the present case this line of analysis would mean that Mr Hewitt cannot be sued for the failure of Hewitt Building Ltd to build in accordance with the contract with the plaintiff, but he can be sued for any loss caused by his failure to conduct the building work he personally undertook with reasonable care.
[40] Importantly given the arguments advanced by Mr Allan, Cooke J approved the approach taken by Chambers J in Body Corporate 202254 v Taylor where it was held that Trevor Ivory Ltd did not prevent a claim in negligence succeeding against an individual builder who was also a director and employee of the contracted building company.11 Chambers J said:
[125] The law in New Zealand is clear that if a builder carelessly constructs a residential building and thereby causes damage, the owners of the residential building can sue the builder in negligence. (I ignore for the present what kinds of damage the builder can be liable for; in the present case, there is no dispute that the damage the appellants have sustained is damage of a kind for which the New Zealand law of negligence will provide compensation.) That is really the long and the short of it. If Mr Taylor were self-employed, no one would have a moment’s doubt about the propriety of the appellants making the above allegations against him. It should make no difference whether or not he was employed at the time he allegedly did these careless things. The only relevance of his being employed is that his employer or employees may be vicariously liable for his tort committed in the course of employment: (Isac and Todd, “Directors’ Torts” in Rowe and Hawes (eds), Commercial Law Essays: A New Zealand Collection (2003), p 50 and the cases there cited). He and the employer would be joint tortfeasors.
[41] Those principles are not confined to builders. Cooke J also referred to the Court of Appeal decision in Stephens v Barron which was not a building case.12 There the respondent had contracted with a company associated with Mr and Mrs Stephens to undertake carpet cleaning and insect spraying in a house. An employee of the company undertook the spraying. It was alleged the wrong substance was used which had a catastrophic effect on the home, causing extensive damage and making it an unhealthy environment for its occupants. Relevantly, the Court of Appeal considered that liability arises from the personal actions of the individual, not from their position as directors or employees of the company entering the contract.13
11 Body Corporate 202254 v Taylor [2008] NZCA 317, [2009] 2 NZLR 17.
12 Stephens v Barron, above n 6.
13 At [30]–[31].
[42] I consider there is sufficient evidence to support the Campbells’ contention that Messrs Wilton and Collis both owed and breached a duty to act with reasonable care in the performance of their work. It appears to me it is also arguable that Mr Wilton had a duty of reasonable care in the supervision of Mr Collis. Evidence for this appears in Mr Collis’s affidavit, that Mr Wilton provided a commitment to review Mr Collis’s work.
[43] Ultimately, whether that is the case should be determined at trial, involving a close analysis of factual matters such as the tasks each defendant actually undertook, the degree of control each exercised over the work, the level of supervision Mr Wilton exercised over Mr Collis’s work, the extent to which the work was not performed to a proper standard, the reasons for that, and whether any loss was suffered by the Campbells as a result.
[44] Mr McKenzie submitted that if I intended to allow the Campbells to replead their claim I should adjourn the applications for summary judgment to allow the applications to be brought back before the Court should the amended pleading also be inadequate. As I have refused Messrs Wilton and Collis leave to apply for summary judgment that is not a course open to me, but I would not have taken that approach in any event.
The application for summary judgment against the Council
[45] I understood Mr Allan to accept that unless I found that the Campbells’ claim in negligence against Mr Collis cannot possibly succeed and entered judgment in his favour, the application for summary judgment against the Council also cannot succeed. This is because such a finding would mean that the Council’s first cause of action for contribution was at least arguable and to obtain summary judgment Mr Collis would need to satisfy the Court that none of the Council’s causes of action could succeed.14 As I have not made such a finding, the application against the Council will also be dismissed.
14 High Court Rules, r 12(2).
Result
[46] The applications by Messrs Wilton and Collis for leave to apply for summary judgment out of time are dismissed.
[47] I note that had I granted them leave to apply for summary judgment, I would have dismissed those applications.
[48] The Campbells’ statement of claim must be repleaded. I direct that the Campbells are to file an amended statement of claim addressing the issues identified in this judgment within 20 working days. The defendants shall have 20 working days to file amended statements of defence. Any statements in reply shall be filed 10 working days thereafter.
[49] As to costs, I understand that both Messrs Wilton and Collis are legally aided. If, despite that, any party seeks costs they may apply by memorandum within 20 working days with memoranda in reply to be filed 10 working days thereafter. Memoranda should be no longer than five pages. In the event that no memoranda are filed, costs shall be reserved.
O G Paulsen Associate Judge
Solicitors:
Kearney & Co, Christchurch A McKenzie, Christchurch P Allan, Christchurch
Rice Speir, Auckland
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