Cridge v Studorp Ltd

Case [2017] NZCA 376


IN THE COURT OF APPEAL OF NEW ZEALAND

CA25/2016
[2017] NZCA 376

BETWEEN

TRACEY JANE CRIDGE AND MARK ANTHONY UNWIN
First Appellants

KATRINA MCKELLAR FOWLER
Second Appellant
SCOTT WOODHEAD
Third Appellant

AND

STUDORP LIMITED
Respondent

CA573/2016

BETWEEN

STUDORP LIMITED
First Appellant

JAMES HARDIE NEW ZEALAND
Second Appellant

AND

TRACEY JANE CRIDGE AND MARK ANTHONY UNWIN
First Respondents

KATRINA MCKELLAR FOWLER
Second Respondent
SCOTT WOODHEAD
Third Respondent
BODY CORPORATE 316651 AND ORS
Fourth Respondents
Hearing:

18 May 2017 (further material received 30 May 2017)

Court:

French, Cooper and Asher JJ

Counsel:

J A Farmer QC, D J S Parker and E S K Dalzell for Appellants in CA25/2016 and Respondents in CA573/2016
J E Hodder QC, J A McKay and A J Wicks for Respondent in CA25/2016 and Appellants in CA573/2016

Judgment:

30 August 2017 at 4.00 pm

JUDGMENT OF THE COURT

AThe appeal in CA573/2016 is dismissed.  The representative order made in the High Court is upheld and the stay of proceedings lifted.

BThe cross-appeal in CA573/2016 is allowed.  The terms of the High Court’s opt-in orders are amended by replacing the opt-in periods of 10 weeks and two weeks with an opt-in period of five calendar months applying to all representative proceedings and commencing from the date of this judgment.

CIn CA573/2016 the appellants must pay one set of costs to the respondents for a standard appeal on a band A basis together with usual disbursements.  We certify for second counsel.

DThe appeal in CA25/2016 is allowed and the decision of the High Court set aside.

EIn CA25/2016 the respondent must pay one set of costs to the appellants for a standard appeal on a band A basis together with usual disbursements.  We certify for second counsel.

FCosts in the High Court for both judgments under appeal are to be determined in that Court in accordance with this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Table of Contents

Introduction  [1]

Appeal against the making of the representative order: CA573/2016       [10]
General principles governing applications under r 4.24  [10]

James Hardie’s arguments  [13]
           Analysis  [24]
Appeal and cross-appeal against the terms of the opt-in order                 
[41]
           Background  [41]

Challenges to the opt-in order  [51]
Analysis  [54]
Outcome of appeal in CA573/2016  [60]
Appeal against the making of the precautionary orders: CA25/2016        [63]
Analysis  [73]
Outcome of appeal in CA25/2016  [87]

Introduction

  1. Rule 4.24(b) of the High Court Rules empowers the High Court to allow a plaintiff to bring representative proceedings on behalf of other persons having the same interest in the subject of the claim.

  2. This appeal concerns an order made under r 4.24(b) by Ellis J in the context of a claim brought by several owners of leaky homes.[1]  The claim, described as a product liability claim, is against Studorp Ltd and James Hardie New Zealand in negligence and for breach of the Fair Trading Act 1986.[2]  Throughout this judgment, we refer to both companies as James Hardie.

    [1]Cridge vStudorp Ltd [2016] NZHC 2451

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AGLC
Cridge v Studorp Limited [2017] NZCA 376
Case
[2017] NZCA 376
Decision Date

CaseChat Overview and Summary

This case involves two appeals arising from proceedings brought by a group of home owners against James Hardie, a manufacturer of building products, in the High Court. The appeals were heard together in the Court of Appeal. The first appeal concerns the granting of a representative order in favour of the home owners by Ellis J. The second appeal concerns the refusal by Thomas J to make precautionary orders that would have preserved the position of the members of the proposed class for limitation purposes should the then pending application for a representative order before Ellis J be unsuccessful. The Court of Appeal dismissed the appeal against the making of the representative order and allowed the cross-appeal challenging the terms of the opt-in order. It allowed the appeal against the making of the precautionary orders and set aside the decision of Thomas J. In the first appeal, the Court held that the three issues selected for determination on a representative basis were sufficiently common to justify the order made by Ellis J and that the representative order will better achieve the just, speedy and inexpensive determination of the proceedings than the test case procedure advocated by James Hardie. In relation to the opt-in order, the Court held that the opt-in periods were too short and took insufficient account of access to justice considerations. It increased the period to five calendar months. In the second appeal, the Court held that when time stopped running under the Limitation Act for the representative owners, it stopped for everyone else on whose behalf they purported to sue and that remained the case regardless of whether a representative order was later made or not. Had Ellis J declined to make a representative order, those homeowners who had already consented, or who were within the definition of the class, would therefore have been able to join the proceedings as named plaintiffs after 31 December 2015.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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