Cridge v Studorp Limited - [2017] NZHC 528

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-594 [2017] NZHC 528

BETWEEN
TRACEY JANE CRIDGE AND MARK

ANTHONY UNWIN Plaintiffs

AND

STUDORP LIMITED Defendant

CIV 2015-485-773

BETWEEN KATRINA MCKELLAR FOWLER First Plaintiff

ANDSCOTT WOODHEAD Second Plaintiff

ANDSTUDORP LIMITED First Defendant

ANDJAMES HARDIE NEW ZEALAND Second Defendant

CIV 2015-404-3117

BETWEEN BODY CORPORATE 316651 AND ORS Plaintiffs

ANDSTUDORP LIMITED First Defendant

ANDJAMES HARDIE NEW ZEALAND Second Defendant

Hearing: 16 February 2017

Counsel:

D J S Parker and E S K Dalzell for Plaintiffs
J E Hodder QC and A J Wicks for Defendants

Judgment:

22 March 2017

CRIDGE AND UNWIN v STUDORP LTD [2017] NZHC 528 [22 March 2017]

JUDGMENT OF ELLIS J

[1] On 14 October 2016 I issued a judgment making representative orders under

HCR 4.24(b) in:1

(a) Cridge and Unwin v Studorp Ltd CIV-2015-485-594;

(b) Fowler and Woodhead v Studorp Limited and James Hardie

New Zealand CIV-2015-485-773; and

(c) Body Corporate 316651 and others v Studorp Limited and James Hardie New Zealand CIV-2015-404-3117 (known as “the Hub proceeding”).

[2] The defendants now seek a stay of execution of my judgment pending their appeal from it. The stay application is directed only to:

(a) the plaintiffs’ intended further advertising of the fact that the Court has made representative orders or (to use the wording in the plaintiffs’ draft advertisement) that the Court “has granted permission for the claims to be brought as a class action”; and

(b) signing up as new plaintiffs persons who would be ineligible if

James Hardie were to be successful in its appeal.

[3] The defendants say that further steps in the proceeding pending the appeal can continue to be addressed in a case management context, and by any appropriate
directions by this Court.

1 Cridge v Studorp Ltd [2016] NZHC 2451.

Background

[4] The plaintiffs’ claims include causes of action under ss 9 and 10 of the Fair Trading Act 1986 and in negligence. The central allegation is that the defendants were negligent in the design and manufacture of the Harditex and Titan Board cladding systems and products, and that this negligence resulted in homes that leaked and loss to their owners.

[5] In October and December 2015, the plaintiffs filed representative statements of claim and applications for leave to bring the claims as representative claims under r 4.24(b) of the High Court Rules, for opt-in orders, and for other orders.

[6] In my judgment on the applications I made representative orders identifying sufficient common issues as to:

(a) whether a duty of care is owed by James Hardie to plaintiffs in the relevant classes;

(b)if so, whether the duty was breached in the very particular way alleged (namely by designing and manufacturing a building “system” that was not fit for purpose); and

(c) whether statements made in the pleaded technical literature were misleading and deceptive.

[7] I noted determination of the remainder of the representative plaintiffs’ claims will have no binding effect on other class members.

[8] The representative orders…

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.

Continue reading Cridge v Studorp Limited

Details

AGLC: Cridge v Studorp Limited [2017] NZHC 528
Case: [2017] NZHC 528
Decision Date: 22 March 2017

CaseChat Overview and Summary

In the case of Cridge v Studorp Limited, the court was required to decide whether to grant a stay of execution of the judgment pending the defendants' appeal. The plaintiffs, who had successfully obtained representative orders under the High Court Rules, sought to advertise the fact that the Court had granted permission for the claims to be brought as a class action. The defendants argued that such advertising could cause confusion among potential plaintiffs, as the representative status of the proceeding was still subject to appeal. The court had to weigh various factors in determining whether the interests of justice required a stay, including the potential for confusion among third parties, the strength of the case on appeal, and the overall balance of convenience. The court ultimately granted a limited stay, as the potential for confusion among potential plaintiffs and the need to avoid unfair reputational risk to the defendants outweighed the potential detriment to the plaintiffs. The terms of the stay were left for the parties to confer and advise the court.

The legal issues the court had to decide included the scope of the representative orders and the opt-in periods, as well as the appropriate principles to apply in determining whether to grant a stay of execution pending appeal. The court had to consider whether the representative orders were appropriate, whether the opt-in periods were reasonable, and whether the interests of justice required a stay of execution. The court also had to consider the potential for confusion among third parties, the strength of the case on appeal, and the overall balance of convenience. Ultimately, the court found that the potential for confusion among potential plaintiffs and the need to avoid unfair reputational risk to the defendants outweighed the potential detriment to the plaintiffs, and granted a limited stay of execution.

Orders