Conning v Martoni Limited - [2012] NZHC 401

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-5351 [2012] NZHC 401

BETWEEN GRAEME EDWARD CONNING AND ROBERT WILLIAM BELL-BOOTH AND OTHERS
Plaintiffs

ANDMARTONI LIMITED First Defendant

ANDTONCI EDI MARINOVIC Second Defendant

ANDROY LESLIE ANDREW Third Defendant

Hearing: 8 March 2012

Appearances: Mr R Bell-Booth for Plaintiffs
Mr P Rice for Second Defendant

Judgment: 4 May 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on
04.05.12 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Counsel:

Registrar/Deputy Registrar Date……………

Mr R Bell-Booth, P O Box 33-002, Takapuna - robert@bellboothsherry.co.nz for Plaintiffs
Mr P Rice, P O Box 4341, Auckland – phillip.rice@aspx.co.nz for Second Defendant
G Brown-Haysom, Brennan & Brown-Haysom, Papatoetoe – godfreybbhlaw@xtra.co.nz - Third
Defendant
Corban Revell, P O Box 21-180, Waitakere City – prevell@corbanrevell.co.nz for fourth defendant
S J Telford, Morgan Coakle, Auckland – sjtelford@morgancoakle.co.nz - Fifth Defendant
C McLean, Heaney & Co, Auckland - cjm@heaneyco.com - Sixth Defendant
Z Brentnall, Gilbert Walker, Auckland - zoe.brentnall@gilbertwalker.com /
murry.gilbert@gilbertwalker.com - First Named Seventh Defendant
Mr P Craighead, Manukau City – peter@petercraighead.co.nz for one of the seventh defendants
Mr E St John, Auckland – Eugene.john@xtra.co.nz for Tenth Defendant –
Alistaire Hall Lawyers,, PO Box 76154, Manukau City - alistairehall.lawyer@xtra.co.nz
H Thompson, McMahon Butterworth Thompson, Auckland – howard@mbtlawyers.co.nz - Twelfth
Defendant

CONNING AND OTHERS V MARTONI LIMITED & ORS HC AK CIV-2010-404-5351 [4 May 2012]

ANDGORDON ALLEN MARTINSEN Fourth Defendant

ANDMSC CONSULTING GROUP LIMITED Fifth Defendant

ANDNORTH SHORE CITY COUNCIL Sixth Defendant

ANDMAURICE HERBET HINTON & ALEC JAMES WHORWOOD
Seventh Defendants

ANDTHE ATTORNEY-GENERAL Eighth Defendant

ANDBRENT SALTER & PAUL SALTER Ninth Defendants

ANDJOHN BISSETT LIMITED Tenth Defendant

AND BODY CORPORATE NO. 204090
Eleventh Defendant

ANDANTHONY JOHN STEPHEN LESTER & LYN LESTER, MARY CATHERINE RYAN, THE TRUSTEES EXECUTORS AND AGENCY CO OF NZ LIMITED Twelfth Defendant

Background

[1] This is an application by the second defendant (Mr T E Marinovic) for summary judgment and strike out of the plaintiffs’ claim. The plaintiffs are the proprietors of residential units situated at 8 Rugby Road, Birkenhead, and have claimed that the defendants’ negligence caused the complex to become leaky. The first defendant, Martoni Ltd, is an incorporated company carrying on business as a property developer. It originally owned the land on which the units are situated, and also developed and constructed the units. The second defendant is the sole director and shareholder of Martoni Ltd. Other defendants to this action include (inter alia) the project manager, the architects, the engineers, and the North Shore City Council. The first and second defendants have cross-claimed against all other defendants except the eighth, eleventh, and twelfth defendants, seeking contribution (if it is found to be liable to the plaintiffs) on the basis of s 17(1)(c) of the Law Reform Act
1936.

[2] The complex was constructed between January 2000 and February 2001. It consists of a total of 12 units — 5 units on the ground floor, 5 units on the first floor, and 2 units on the second…

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.

Keep reading for free

Create a free CaseChat account to read Conning v Martoni Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 401
Decision Date: 4 May 2012

CaseChat Overview and Summary

This case involved an application by the second defendant, Mr T E Marinovic, for summary judgment and to strike out the plaintiffs' claim. The plaintiffs are the proprietors of residential units at 8 Rugby Road, Birkenhead, and claimed that the defendants' negligence caused the complex to become leaky. The first defendant, Martoni Ltd, is an incorporated company carrying on business as a property developer. It originally owned the land on which the units are situated, and also developed and constructed the units. The second defendant is the sole director and shareholder of Martoni Ltd. The plaintiffs' claim was based on the detailed way in which certain aspects of the construction were carried out, rather than the type of construction technique used per se. The main issue in this case was whether Mr Marinovic owed a personal duty of care to the plaintiffs to take reasonable care to ensure that design and construction of the apartments was such that it would not cause damage and loss to the purchasers. This depended on whether a director can be made personally liable even if he had incorporated a company for the very purpose of limiting personal liability. The court found that the uncertainty of the legal position combined with the haziness of the factual situation meant that it could not with confidence rule that the Court should not conclude that it is reasonable to find that Mr Marinovic, in taking such steps as he did, did not step out from the shadow of the company by acting in such a way that the presence of the company and the overall arrangements was incidental, if not irrelevant. For those reasons the application for summary judgment was dismissed. The strike out application was also dismissed. Costs were reserved. The Registrar was to allocate a further case management conference for this proceeding at a convenient date.

Orders