Hearing: 7-8 June 2016

Counsel:

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

Judgment:

14 October 2016

CRIDGE v STUDORP LIMITED [2016] NZHC 2451 [14 October 2016]

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4.30 pm on the 14th day of October 2016

Table of contents

The issues [7] THE NATURE OF THE CLAIMS [10] The pleadings [10] Cridge/Unwin [10] Fowler/Woodhead [21] The BC 316651 (“The Hub”) [25] ISSUE 1: REPRESENTATIVE PROCEEDINGS [26] The plaintiffs’ stance [26] Rule 4.24 [29] Rule 1.2 [34] The relevant authorities [36] Discussion [47] Rule 1.2 [68] ISSUE 2: OPT-IN PERIOD [76] ISSUE 3: CONSOLIDATION/JOINT TRIAL [83] RESULT [86]

[1] All of the plaintiffs in these three proceedings own a home that leaks.1 Each says that the leaks are attributable to defects in cladding systems known as “Harditex” and “Titan Board”.2 The cladding systems were manufactured by the defendants, to whom I shall refer collectively as James Hardie.3 The plaintiffs also say that James Hardie made misleading statements about those products or systems. They now bring claims in negligence and under the Fair Trading Act 1986 (the FTA)
seeking damages for the losses they have suffered.

[2] There are a number of others who are in a similar position to the plaintiffs. Following the release of an earlier decision of this Court,4 55 of them have also filed claims and have the same lawyers acting for them. There are 10 others who have been identified but have not filed claims. As I understand it, there are also a number of parallel claims filed in the Auckland Registry.

[3] In any event, the plaintiffs seek to pursue their claims against James Hardie on behalf of those others, on a representative basis under r 4.24. The 64 identified owners of other Harditex properties have consented to be represented by the named plaintiffs in the Harditex claims. One owner has consented to be represented by the named plaintiffs in the Titan Board claim.

[4] The plaintiffs also seek orders under r 10.12 either for consolidation or joint trial of all three proceedings. They further contend that:

(a) consent by those seeking representation is sufficient for representative action; and

(b) an opt-in date is appropriate.

1 The Body Corporate plaintiff in CIV 2015-404-3117 represents the individual unit holders.
2 The home belonging to the plaintiffs in the first matter (Cridge & Unwin v Studorp Limited CIV-
2015-485-594) was built in 1992 using Harditex cladding. They say that the cladding…

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 Ltd

Details

AGLC: Cridge v Studorp Ltd [2016] NZHC 2451
Case: [2016] NZHC 2451
Decision Date: 14 October 2016

CaseChat Overview and Summary

The case of Cridge v Studorp Ltd involved multiple plaintiffs bringing claims against the defendants, collectively referred to as James Hardie, for damages caused by defects in cladding systems known as Harditex and Titan Board. The plaintiffs sought to pursue their claims on a representative basis, arguing that they shared a common interest in the resolution of any question of law or fact arising in the proceedings. The defendants opposed the representative action, arguing that the claimants did not have the same interest required by r 4.24 for representative proceedings.

The court considered three main issues: whether leave should be granted for representative proceedings under r 4.24, whether opt-in orders were appropriate and what period should be imposed, and whether an order should be made under r 10.12 to consolidate the proceedings or have them jointly tried. The court concluded that representative orders should be made in relation to the common issues raised in the three statements of claim, namely whether a duty of care was owed by James Hardie to the plaintiffs, whether that duty was breached as alleged, and whether the statements made in the pleaded technical literature were misleading and deceptive. The representative orders were to be backdated to the date of filing of the latest iterations of the relevant statements of claim. The court also proposed to make opt-in orders on the lines it had set out, and dismissed the application for consolidation or joint trials.

The court's decision was based on the principle that the interests of expedience, justice and cost to the parties must also be considered when deciding whether to make representative orders. While the claims as pleaded raised issues of duty and breach which might fairly be said to be "the same" or sufficiently common for representative purposes, the court recognised that questions of causation and loss would plainly vary between cases. The court also considered the relative advantages or disadvantages of a (partial) representative process and the "test case" alternative favoured by James Hardie, and concluded that the creation of estoppels on the issues of duty and breach could potentially be of real benefit to both sides in terms of the r 1.2 touchstones of expedience and expense.

Orders