Cridge v Studorp Ltd - [2015] NZHC 3065

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-0594 [2015] NZHC 3065

BETWEEN
T J CRIDGE AND M A UNWIN

Plaintiffs

AND

STUDORP LIMITED Defendant

CIV-2015-485-0773

BETWEEN K M FOWLER First Plaintiff

ANDS WOODHEAD Second Plaintiff

ANDSTUDORP LIMITED Defendant

Hearing: 27 November 2015

Appearances:

D J S Parker and E S K Dalzell for the Plaintiffs (in each proceeding)

J E Hodder QC and J A McKay for the Defendant

Judgment:

4 December 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 4 December 2015 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date:………………………….

T J CRIDGE AND M A UNWIN v STUDORP LIMITED [2015] NZHC 3065 [4 December 2015]

Introduction

[1] The plaintiffs in two separate proceedings have applied for consolidation of their proceedings and for leave to bring a representative proceeding (the Application). Eighteen named property owners are listed in the statement of claim in each proceeding as having consented to being represented and a total of 35 named property owners had so consented by the date of the hearing in respect of this decision (the consenting persons).

[2] The defendant opposes the Application.

[3] This decision concerns the plaintiffs’ request that the Court make certain orders contingent on the outcome of the Application because, without those orders, the consenting persons and any persons who might in the future consent to the representative proceedings (the potential claimants) – together described as potential class members – might have their claims time barred pursuant to s 4 of the Limitation Act 1950.

[4] The defendant is opposed to the making of the orders sought.

Background

[5] The plaintiffs seek to bring claims on behalf of themselves and the potential class members, being a class of other persons who own or have owned a property that is or was clad using the defendant’s building products.

[6] There are claims under s 9 of the Fair Trading Act 1986 and in negligence relating to a breach of duty of care and failing to exercise reasonable care and skill in relation to the design, development, manufacture, testing and supply of the defendant’s building products.

[7] The consenting persons’ properties are located in a number of different areas throughout the North Island.

[8] The Application will not be heard until some time in 2016. However, on 31

December 2015, a new 15 year longstop period of limitation comes into effect. By effect of s 62 of the Limitation Act 2010, s 23B of the Limitation Act 1950 provides:

23B Longstop period of limitation

(1) No action to which this section applies may be brought after the last to end of the following periods:

(a) 5 years ending on the close of 31 December 2015:

(b) 15 years after the date of the act or omission on which the action is based.

(2) That period of limitation applies to the action in addition to every other period of limitation that applies to the action.

(3)…

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 [2015] NZHC 3065
Case: [2015] NZHC 3065
Decision Date: 4 December 2015

CaseChat Overview and Summary

The case of Cridge v Studorp Limited involved proceedings in the High Court of New Zealand. The plaintiffs sought consolidation of their proceedings and leave to bring a representative proceeding on behalf of a class of property owners who had used the defendant's building products and suffered losses due to alleged negligence and breaches of the Fair Trading Act. The defendant opposed the application and the plaintiffs sought orders to prevent their claims from being time barred under the Limitation Act. The court considered whether to make a declaration that, if the application was dismissed, there was an "irregularity" that could be cured by deeming the potential class members to have commenced their own proceedings at the same time as the representative statement of claim was filed or by being added as plaintiffs. The court declined to make the orders sought, finding that the orders would involve extending the limitation period contrary to the Limitation Act and the Rules did not provide a basis for such orders. The court emphasised that the orders sought were not to cure non-compliance with the Rules but with the Limitation Act. The court declined to make the orders and awarded costs to the defendant.

Orders