Chow v Thomson HC Auckland CIV 2009-404-4765

[2010] NZHC 2107

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-4765

BETWEEN  LAP HANG CHOW AND LAP LEE CHOW

Plaintiff

ANDRAYMOND JOHN THOMSON AND VANESSA LOUISE THOMSON

First Defendants

ANDFRANKLIN DISTRICT COUNCIL Second Defendant

ANDCARNACHAN ARCHITECTS LIMITED Third Defendant

ANDGOOD BROS. CONSTRUCTION LIMITED

Fourth Defendant

ANDM.P.M. WATERPROOFING LIMITED Fifth Defendant

Hearing:         25 November 2010

Appearances: Mr G J Beresford for plaintiffs

Mr P H Thorp for first and fourth defendants
Ms E Tobeck for third defendant
Ms A Zhou for seventh defendant

Judgment:      25 November 2010

(ORAL) JUDGMENT OF LANG J

[on application for review of Associate Judge’s decision]

CHOW V THOMSON AND ORS HC AK CIV-2009-404-4765  25 November 2010

[1]      On   16   November   2010   Associate   Judge   Osborne   conducted   a   case management conference in this proceeding.  He was dissatisfied with a number of aspects of the manner in which the plaintiffs had complied with earlier directions of the Court, particularly in relation to discovery and the filing of an amended pleading. As a result, he made a number of directions at the conclusion of the conference requiring the plaintiffs to take further steps under the sanction of “unless orders” unless the directions were complied with.

[2]      The plaintiffs have now applied to review the unless orders.  The application has been brought on as a matter of urgency because the orders take effect tomorrow if the plaintiffs have not complied with them.

[3]      To  some  extent  the  issue  has  become  moot,  because  the  plaintiffs  have already complied with the Associate Judge’s direction that they file a supplementary list of documents listing all documents currently in their possession.   They still remain at risk, however, in relation to a direction requiring them to file an amended statement of claim by 26 November 2010.

[4]      This morning I have had a very useful discussion with counsel regarding the frustration that the defendants have felt at what they perceive to be a lack of specificity by the plaintiffs in pleading their claims.   In particular, the defendants take the view that even now, approximately 16 months after the proceeding was issued, they still have no real idea of the basis upon which the plaintiffs claim that they are liable.  They want to know why the plaintiffs say the work they carried out was defective, and they need some detail about that.

[5]      The plaintiffs have taken the view that the pleadings are adequate, and that the defendants ought to be able to ascertain from the current version of the statement of claim where they are at risk.

[6]      I do not propose to travel down that path further, because I apprehend that the plaintiffs now understand what is required.  I consider it would also be a large step forward  if  the  plaintiffs  could  isolate  the  key  issues  that  are  likely  to  be determinative of the proceeding.  The solicitors representing the plaintiffs are very

experienced in this field, and they are aware that most leaky building claims are likely to turn on three or four major defects that have caused the bulk of the damage. If the plaintiffs focus their attention in this direction, I consider it will allow the proceeding to advance considerably from the perspective of all parties.

[7]      I am not prepared to withdraw the unless order in relation to the lists of documents, notwithstanding the fact that the order has now been complied with.  I accept that an unless order is a draconian step to take, particularly in the context of a leaky home proceeding.   In this case, however, the plaintiffs knew that they were required to file a supplementary list of documents by a particular date, and elected not to do so because of the fact that the tender process was not complete.  This meant that the supplementary list was likely to be inadequate.   That may have been the case, but the point of making an order requiring a party to file a supplementary list of documents is to ensure that documents that are currently in the possession of a party are provided to the other parties to the litigation.  The plaintiffs deliberately elected to  disregard  the  order  and,  in  those  circumstances,  I am  not  surprised  that  the Associate Judge made an unless order.

[8]      I have slightly more concern about the imposition of an unless order  in relation to the filing and service of an amended statement of claim.   In a leaky building  case  the  plaintiff  can  only  plead  its  claims  based  on  the  information available at the time of the pleading.   I am satisfied, however, that the plaintiffs’ claim must now be sufficiently advanced that they have an understanding of the basis upon which each of the defendants is at fault in relation to the construction of the building.   I therefore see no impediment to the plaintiffs particularising their claim at this stage in such a way that the defendants understand the gravamen of the cases against them.

[9]      I therefore propose to leave the unless order in relation to the filing of the amended statement of claim in place, but to vary it to require the amended statement of claim to be filed and served no later than 31 January 2011.   This will give the plaintiffs sufficient time to take on board the contents of the Associate Judge’s minute and of the minute that I make in relation to today’s call of the matter.

[10]     In the event that any of the defendants are dissatisfied with the amended pleading, they are to file and serve an application seeking further and better particulars no later than 21 February 2011.  That is to be the subject of documents in opposition by 4 March 2011.  The Associate Judge who conducts the conference on

15 March 2011 will then be in a position to allocate the applications a fixture date.

Result

[11]     For  these  reasons  the  application  for  review  is  dismissed,  subject  to  the variation of the directions that I have made.  .

Costs

[12]     I award costs in relation to the application to those parties who appeared today in opposition to it.

[13]     Costs are to be calculated on a 2B basis together with disbursements as fixed by the Registrar.

Next event

[14]     The next event remains the telephone conference scheduled for 15 March

2011 at 10.50 am.

Lang J

Solicitors:

Grimshaw & Co., Auckland

Nielsen Law, Hamilton

Mr C T Gutsell QC, Hamilton Heaney & Co, Auckland Morgan Coakle, Auckland

Mr P H Thorp, Auckland Mr M Benvie, Auckland Wynyard Wood, Auckland Smith & Partners, Henderson Wayne Stollery, Waitakere Castle Brown, Auckland

Ms A Zhou, Auckland