Devany v Wellington City Council
[2015] NZHC 1087
•20 May 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-11281 [2015] NZHC 1087
BETWEEN PAUL ALEXANDER DEVANY,
ANNABEL FRANCES JONES AND DIANE MYRA COPE
Plaintiffs
AND
WELLINGTON CITY COUNCIL Defendant
DON THOMSON CONSULTING ENGINEERS LIMITED
First Third Party
DONAL MACLEAN THOMSON Second Third Party
Hearing: 12 February 2015 Counsel:
P Bremer and S J Baldwin for Plaintiff
G M G Joe for DefendantJudgment:
20 May 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] This is an application by the defendant, Wellington City Council (the Council), to strike out part of the plaintiffs’ claim against it in negligence relating to the construction and repair of a “leaky home” owned by them.
Facts
[2] In April 1998 the Council granted a building consent for the construction of a house in the Wellington suburb of Newlands (the House).
DEVANY v WELLINGTON CITY COUNCIL [2015] NZHC 1087 [20 May 2015]
[3] In August 1998 the plaintiffs, as trustees of a family trust (the Trustees), contracted with Kingdom Residential Housing Limited (struck off) (Kingdom) to purchase the House, which was then under construction. Kingdom finished construction of the House in February 1999, and in that month the Council issued a code compliance certificate (a CCC) for the House.
[4] The House is the home of two of the Trustees, Paul Devany and Annabel
Jones. They have lived in the House since it was built.
[5] In February 2003, after leaks were discovered in the House, the Trustees lodged a claim (the 2003 WHRS Claim) with the Weathertight Homes Resolution Service (WHRS). A WHRS survey report of 13 October 2003 confirmed a range of weathertightness and associated structural issues which meant that the House had “shortcomings in its ability to comply with Clauses E2 External Moisture and B2
Durability of the Building Code”. That report identified the causes of those shortcomings. It also identified needed repairs (the 2003 Recommended Repair Work), confirmed that the 2003 WHRS Claim met the criteria of s 7(2) of the Weathertight Homes Resolution Services Act 2002 (the 2002 WHRS Act), and said that the parties to that claim should be the Council, Kingdom and the builder and roofer involved.
[6] After mediation, the 2003 WHRS Claim was terminated pursuant to a settlement agreement made, as provided for by s 17 of the WHRS Act, between the Trustees, the Council and Kingdom on 29 October 2004 (the Settlement Agreement). The Council was to pay an undisclosed amount to Kingdom, and Kingdom was to carry out repairs to address identified weathertightness issues and meet certain of the Trustees’ costs. Those repairs (the 2004 Agreed Repair Work) were summarised in a handwritten note, and in a more detailed schedule, both of which were attached to the Settlement Agreement. That more detailed schedule, headed “Summary of Remedial Work”, comprised a list of repair work which would appear to have originally been prepared for the Trustees and may, I infer, have reflected the 2003
Recommended Repair Work. As appended to the Settlement Agreement, that list had been amended by the deletion of certain items, the amendment of others and the
addition of new ones. In other words, it would appear that the 2004 Agreed Repair
Work may not be co-extensive with the 2003 Recommended Repair Work.
[7] On 12 March 2005 Kingdom obtained a building consent (the 2005 Consent) for repair work on the House. That work (the 2005 Consented Repair Work) is described in Kingdom’s November 2004 building consent application as comprising “Strengthen Walls As Shown On Owners Details and Plans, Replace 3 x Windows As Shown On Plans”. The plans attached are the original, 1998, construction drawings annotated to identify six windows on the south east and south west elevations of the House and marked with the notation, “STRENGTHEN FRAMES AROUND WINDOWS AS PER ENGINEERS DRAWINGS 4, 5, 6, 7”. Three of those windows, on the South East elevation, carry the further notation, “REPLACE WINDOWS WITH NEW SPECIFIED DESIGN (unreadable specification) WINDOWS”. The referenced engineers’ drawings are not attached to the copy of the building consent application. In September 2005 the Council issued a CCC with respect to the 2005 Consented Repair Work (the 2005 CCC). The 2005 CCC describes the relevant building work as being “Strengthen walls and replace 3 windows for weather tightness”. On the face of things, therefore, the 2005
Consented Repair Work was not co-extensive with either of the 2003 Recommended
Repair Work or the 2004 Agreed Repair Work.
[8] Notwithstanding the carrying out by Kingdom of the 2005 Consented Repair Work, and the issue by the Council of the 2005 CCC, the Trustees discovered – as I understand it in June 2010 – that the House still leaks and continues to suffer from associated structural issues.1 The Trustees commenced a further claim in the Weathertight Homes Resolution Service (the 2010 WHRS Claim) and, in 2010 and
2013, obtained further WHRS survey reports. One of those reports, the Hilfen Report, identified some 13 types of defect in the construction of the House, over 60 specific locations in the House where damage had been caused by those defects and the nature and extent of that damage. The defects identified in the Hilfen Report would appear to include, but may not be limited to, those which had previously been
identified. Likewise, the areas identified as damaged include ones identified as
1 These facts are not covered by the pleadings and were only briefly explained to me during the
hearing of the Council’s strike-out application.
damaged in earlier WHRS survey reports, ones where work was done as part of the carrying out of the 2005 Consented Repair Work and ones which, again as I understand it, may not previously have been identified as suffering from damage (or as being otherwise defective) because of weathertightness issues.
[9] On 7 October 2014, the Trustees commenced these proceedings. The Trustees sue the Council in negligence. In very general terms they seek to recover from the Council the cost of the repairs, estimated to be not less than $597,000, they say will be necessary to address the House’s weathertightness defects and make it compliant with E2 and B2 of the Building Code.
[10] They therefore claim, again in very general terms, that in the circumstances the Council was under a duty to them to ensure that the repair work carried out by Kingdom was sufficient to, and did, satisfactorily address the House’s weathertightness issues.
[11] It is appropriate at this point to consider the Trustees’ pleading in some detail. As relevant, the Trustees plead the basic facts on which they base that negligence claim in the following way:
(a) They made a claim before the WHRS to remedy the defects listed in Schedule 1 of the statement of claim. Schedule 1 of the statement of claim is a copy of the list of causes from the October 2003 WHRS survey report. The Trustees call those causes “the original defects”.
(b)Following the Settlement Agreement, Kingdom applied for a building consent:2
to carry out weathertightness and structural repairs to the house, including:
(i) “strengthen walls …”; and
(ii) “replace 3 x windows”.
2 [17] of the statement of claim dated 7 October 2014.
The Trustees call those weathertightness and structural repairs “the repairs”.
(c) There are defects in “the repairs”:3
The scope of the repairs was inadequate to address the extent of weathertightness issues with the house. Further defects in the original construction remain. The repairs themselves have also been discovered to be defective.
The further defects, from the original construction and failed repairs, are described at Schedule 2.
Schedule 2 of the statement of claim is the list of defects and damage from the Hilfen Report. The Trustees call those defects and damage together “the further defects”.
(d)It will cost $597,000 to “repair the further defects and the damage and ensure that the house complies with the Building Act 2004 and the Building Code”.4
[12] The Trustees plead negligence on the Council’s part in the following terms:5
The plaintiffs repeat paragraphs 1 to 27, and say that the council owed them a duty to exercise reasonable skill and care in performing the following functions under the Building Act 1991 (“the Act”);
(a) granting the building consent, if satisfied on reasonable grounds that the provisions of the Building Code would be met if the building work was properly completed in accordance with the plans and specifications (section 34(3) of the Act);
(b) establishing, enforcing, and carrying out a system of inspections that would enable it to carry out its function under section 43(3)(a) of the Act; and
(c) issuing the CCC if satisfied on reasonable grounds that the building work complied with the building consent (section
43(3)(a) of the Act).
In breach of its duties the Council:
3 [21] and [22] of the statement of claim.
4 [24] of the statement of claim.
5 [28] and [29] of the statement of claim.
(a) issued the building consent when, it knew, or ought to have known that:
(i) the scope and extent of the repairs were insufficient to adequately remediate the original defects; and
(ii) the repairs, even if carried out in accordance with the plans/specifications, would not have complied with the Building Code;
(b) failed to carry out inspections that were sufficient in number and thoroughness:
(i) it failed to recognise during its inspections that the repairs were insufficient to adequately repair the original defects;
(ii) it failed to identify and require rectification of the further defects during its inspections; and
(iii) the original defects, and the further defects, were apparent to a reasonably prudent building inspector at the time of the inspections;
(c) failed to issue a notice under Section 124(2)(c) of the
Building Act 2004 or Section 42 of the Act; and
(d) negligently issued the CCC, when reasonable grounds did not exist on which it could be satisfied that the building work at the property complied with the building code.
[13] In summary, having pleaded at [28] of the statement of claim what they no doubt say are the common law duties owed by the Council under the Building Act, the Trustees at [29] identify four areas of breach of those duties:
(a) the issue of the 2005 Consent; (b) the carrying out of inspections;
(c) the failure to issue notices under s 42 of the Building Act 1991 (the
1991 Act) and s 124 of the Building Act 2004 (the 2004 Act); and
(d) the issue of the 2005 CCC.
[14] In submissions, Mr Bremer for the Trustees acknowledged that the reference to s 124 of the 2004 Act should have been to s 164 of that Act and, in light of the law as it applies to strike-out applications,6 I proceed accordingly.
[15] At each of those stages in the overall process the Council breached its duty of care because “the repairs”:
(a) were, as specified in the application for the 2005 Consent, not Code compliant; and
(b) were not adequate to, and did not, remediate “the original defects” and
“the further defects”.
[16] As I understand therefore, in these proceedings the Trustees say the Council had a duty to ensure that, as consented and also as carried out, the 2005 Consented Repair Work satisfactorily remediated the House by ensuring weathertightness and by repairing structural damage (B2) caused because the House had, since at least February 2003, not complied with E2. That duty existed irrespective of when those defects were identified or of the scope of the 2003 Recommended Repair Work, the
2004 Agreed Repair Work and the 2005 Consented Repair Work. What the Council had to ensure was that the House was repaired by Code compliant building work that repaired all of the defects and damage recorded in the Hilfen Report (the Hilfen Defects and Damage).
[17] The Council accepts that, in law, it could be liable to the Trustees if in fact –
which it denies – it had been negligent in consenting to and/or certifying the 2005
Consented Repair Work as complying with the Building Code. But it applies to strike out those parts of the Trustees’ claim in these proceedings that are based on the alleged failure of the 2005 Consented Repair Work to address all of what it has described as “the further defects”, that is, any of the Hilfen Defects and Damage the
repair of which did not come within the scope of the 2005 Consented Repair Work.
6 See [21]–[22] below.
[18] It does so on a number of grounds. It says that, to the extent that the Trustees seek to base their claim on anything more than the failure of the 2005 Consented Repair Work to comply with the Building Code, the Trustees’ claim is:
(a) statute-barred;
(b) precluded by the “full and final settlement” terms of the Settlement
Agreement; and
(c) based on alleged duties of care that are novel and not tenable, as they are inconsistent with the scheme of the Building Act and go beyond those recognised in McNamara v Auckland City Council.7
[19] The Council says that, as in Johnson v Pitts, the running together of claims with respect to alleged defects in the original construction of the House and in the
2005 Consented Repair Work is engineered to circumvent the plaintiffs’ obvious
limitation difficulty, and the difficulties that arise by reason of the settlement.8
[20] Before considering those arguments I will briefly summarise the well-known legal principles applying to strike-out applications.
Strike out applications – the legal principles
[21] For these purposes it is sufficient to refer to the articulation of those principles in North Shore City Council v Attorney-General. Writing for the majority, Blanchard J observed:9
The principles are well settled. The statement of them by Richardson P in
Prince and Gardner is authoritative:
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed ... ; the jurisdiction is one to be exercised sparingly, and only in a clear case
7 McNamara v Auckland City Council [2012] NZSC 34, [2012] 3 NZLR 701.
8 Johnson v Pitts HC Whangarei CP10/01, 4 December 2001 at [14].
9 North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146] (citations omitted).
where the Court is satisfied it has the requisite material ... ; but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction ...
To this can be added the cautionary remark of the Chief Justice and Anderson J in this Court in Couch that particular care is required in areas where the law is confusing or developing. They identified liability in negligence for the exercise or non-exercise of a statutory duty or power as just such an area, and stressed the desirability of determining whether a duty of care exists in cases of this kind on the basis of actual facts found at trial, rather than on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out. Even in such cases, however, the range of the factual possibilities which could be established at trial may be sufficiently limited as to remove the danger of relying upon assumptions about what may be able to be proved. McLachlin CJ observed for the Court in the very recent Supreme Court of Canada case, Imperial Tobacco: “A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven”.
[22] The Chief Justice had earlier put it this way:10
It is not necessary to traverse again the approach to exercise of the strike out jurisdiction. It is enough for me to say of the peremptory procedure here adopted that a claim is not suitable for summary dismissal ahead of trial and before discovery unless, even on repleading, it is clearly untenable as a matter of law (in which case the pleadings should be struck out) or unless there is a complete and incontrovertible answer on the facts (in which case summary judgment may also be entered for the defendant).
Analysis
[23] As the factual narrative I have set out shows, the Trustees discovered leaks in the House in February 2003. They received a comprehensive report on the weathertightness and associated structural issues of the House on 13 October 2003. They commenced these proceedings on 7 October 2014. On that basis, and whether applying the general six year limitation period11 and the “reasonable discoverability”
test from Hamlin,12 or the 10 year long stop limitation period provided by the
Building Act,13 there is, in my mind, no doubt that in the ordinary course of things these proceedings would be statute-barred as being out of time.
10 At [25] (citations omitted).
11 Limitation Act 1950, s 4.
12 Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC) confirming the test in Invercargill
City Council v Hamlin [1994] 3 NZLR 513 (CA).
13 Building Act 1991, s 91(2); Building Act 2004, s 393(2).
[24] The essential question here is whether the circumstances that led to the Settlement Agreement, the terms of that agreement itself, and the work done pursuant to that agreement alter that position and, if so, to what extent.
[25] The Council accepts, as it must, that following the Settlement Agreement it could have incurred fresh liability when it granted the 2005 Consent, inspected the
2005 Consented Repair Work and issued the 2005 CCC. Beyond that, however, it
says the plaintiffs’ claims are untenable and out of time.
[26] It is appropriate at this point to return to the plaintiffs’ pleadings, and to the
terms of the Settlement Agreement.
[27] The pleadings are not clear, either in terms of the factual narrative outlined, or the legal duties claimed. In my narrative of the factual background, and in particular by identifying what I have termed the 2003 Recommended Repair Work, the 2004 Agreed Repair Work, the 2005 Consented Repair Work and the Hilfen Defects and Damage, I have attempted to identify the factual basis of the plaintiffs’ claims more clearly than the statement of claim does.
[28] As a matter of law, and as set out at [12], the plaintiffs plead the Council’s undoubted common law duties and then, without any reference to the Settlement Agreement or the facts and circumstances surrounding it, allege negligence as regards the remediation of what they describe as both the “original defects” and the “further defects”.
[29] I am satisfied that without the Council’s involvement in the 2003 WHRS Claim, and the Settlement Agreement that followed, those pleadings could not survive the Council’s strike-out application. That is, I accept the Council’s argument that its “Hamlin” common law duties and potential liabilities when it issued the 2005
Consent, inspected the 2005 Consented Repair Work and issued the 2005 CCC, did not extend beyond the 2005 Consented Repair Work. I consider it is not tenable to argue that a consent authority when issuing a building consent for certain work, inspecting that work and issuing a CCC has responsibilities that go beyond that work, and extend – as pleaded here in the case of the Council – to ensuring that the
2005 Consented Work would achieve the remediation of the House’s
weathertightness problems, and associated structural damage, in their entirety.
[30] Do the facts and circumstances which gave rise to the Settlement Agreement, and the terms of that agreement itself, alter that position? In my view, the simple answer is that they may do.
[31] The Council did not grant the 2005 Consent, inspect the 2005 Consented Repair Work and subsequently issue the 2005 CCC in a vacuum. On the contrary, the plaintiffs had lodged a claim with the WHRS in which the Council, by the Service’s assessment, was properly involved. The long title of the 2002 WHRS Act provides:
The purpose of this Act is to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for assessment and resolution of claims relating to those buildings.
[32] In terms of s 9 of that Act, the 2003 WHRS Claim would have been initially assessed by the Chief Executive, who would have decided that the information provided indicated that the claim met, or was capable of meeting, the s 7 criteria. Section 7(2) sets out those criteria:
7Criteria for eligibility of claims for mediation and adjudication services
…
(2) To be an eligible claim, a claim must, in the opinion of an evaluation panel, formed on the basis of an assessor's report, meet the following criteria:
(a) the dwellinghouse to which the claim relates must—
(i) have been built; or
(ii) have been subject to alterations that give rise to the claim—
within the period of 10 years immediately preceding the date that an application is made to the chief executive under section 9(1); and
(b) the dwellinghouse is a leaky building; and
(c) damage to the dwellinghouse has resulted from the dwellinghouse being a leaky building.
[33] An assessor’s report would then have been prepared in terms of s 10. Where, as here, the assessor’s opinion is that the claim is an eligible one, the report must set out the assessor’s view as to:
10(1) …
(b) (i) the cause of water entering the dwellinghouse; and
(ii) the nature and extent of any damage caused by the water entering the dwellinghouse; and
(iii) the work needed to make the dwellinghouse watertight and repair that damage; and
(iv) the estimated cost of that work; and
(v) the persons who should be parties to the claim.
[34] An assessor’s report is then evaluated by an evaluation panel to decide
whether the claim does meet the criteria set out in s 7(2).14
[35] Sections 13 to 21 of the 2002 WHRS Act provide for mediation, as happened here. Section 17 reads:
17 Settlements
(1) Where a claim is resolved, in whole or in part, by agreement, whether through the provision of mediation services or otherwise, any person—
(a) who is employed or engaged by the chief executive to provide the services; and
(b) who holds a general authority, given by the chief executive, to sign, for the purposes of this section, agreed terms of settlement,—may, at the request of the parties to the claim, and under that general authority, sign the agreed terms of settlement.
(2) A person who receives a request under subsection (1) must, before signing the agreed terms of settlement,—
(a) explain to the parties the effect of subsection (4); and
14 2002 WHRS Act, ss 10–12.
(b) be satisfied that, knowing the effect of that subsection, the parties affirm their request.
(3) A person who signs the agreed terms of settlement must give a statutory declaration in the approved form (if any) that the requirements of this section have been complied with.
(4) Where, following the affirmation referred to in subsection (2) of a request made under subsection (1), the agreed terms of settlement to which the request relates are signed by the person empowered to do so,—
(a) those terms are final and binding on, and enforceable by, the parties; and
(b) except for enforcement purposes, no party may seek to bring those terms before a court, whether by action, appeal, application for review, or otherwise.
[36] Section 18 provides for the enforcement of s 17 settlement agreements in the
District Court.
[37] By my assessment, it is at least arguable, and is not untenable, that the Council is in quite a different situation than it would normally be in terms of the duties it could be said to owe to the plaintiffs in 2005. This is in light of the 2002
WHRS Act’s purpose and the statutory framework outlined above, and in particular the facts that the Council was identified as a person who should be party to the 2003
WHRS Claim and was a signatory to the Settlement Agreement.
[38] There are also the terms of the Settlement Agreement itself. The Settlement Agreement is recorded on a Weathertight Homes Resolution Service standard form “Agreed Terms of Settlement”. The second page of that standard form records a standard background, and then particularises the terms of the Settlement Agreement between the plaintiffs, Kingdom and the Council in the following terms:
i) See attached sheet – “Settlement Agreement”
ii) This agreement is in full and final settlement of the claim between the parties signing this Agreed Terms of Settlement.
iii) The parties’ rights and obligations as to confidentiality of the agreed terms of settlement are set out in the Act, in particular Section 16. The parties acknowledge that the agreed terms of settlement and any statement, admission or document created or made for the purposes of this mediation, and any information disclosed orally in the course
of the mediation, shall remain confidential to the parties and shall not be disclosed, except where disclosure is required for the purpose of enforcement proceedings under the Act and generally, and adjudication under the Act or any proceeding in the Disputes Tribunal or Court.
[39] The “Settlement Agreement” was a handwritten document which, as relevant, read as follows:
1.This agreement is in full and final settlement of the damage and defects to the building as outlined in the WHRS report.
2.The parties agree to rectify the defects in the scope of works set out on the attached pages. The work will be completed by Kingdom Residential Housing Ltd (or contractors that they engage).
3.The work will be completed in accordance with the following timetable:
Kingdom will use its best endeavours to:
(a) complete scoping and specification work and obtain building consent by 31 December 2004
(b) start the building work by the end of January 2005
(c) complete the building work by the end of March 2005, weather permitting.
4.Kingdom will be responsible for obtaining the necessary building consent for the work.
5. The Council has reached a confidential settlement agreement (dated
29 October 2004) with Kingdom in respect of the matters raised in the WHRS report.
[40] The summary of work attached to the Settlement Agreement (see [6] above), having referred to the requirement for the upper floor to be nailed down and for work on the five windows on the southwest facing side of the House, recorded:
Details of the proposed remedial work, for all items covered by this agreement, shall [be] submitted to Ron Thurlow of Joyce Group, and shall in turn be submitted to the Council with an application for building consent. If Ron and the homeowners insist on any particular flashing system, against Kingdom’s advice, Kingdom will comply with Ron’s wishes, but responsibility for that system shall shift to the homeowners (provided such system qualifies for building consent). (emphasis added)
[41] Against that background, I consider it is at least arguable that the Council’s
duty to the plaintiffs in these circumstances was not limited, as I accept would be the
normal position, to its actions in consenting to and certifying the 2005 Consented Repair Work as complying with the Building Code. Rather, it is arguable in tort that the circumstances which led to, and the signing of, the Settlement Agreement created the necessary proximity or relationship between the plaintiffs and the Council. There would then also, at least arguably, be a substantial nexus between the Council’s alleged negligence and the plaintiffs’ alleged loss, and it could not be said that the plaintiffs were not vulnerable nor, given the Council’s involvement in the settlement, that the duty would place an undue burden on it.
[42] More obviously perhaps, and in addition to a possible claim in the tort of negligence, I would have thought that a claim under the Settlement Agreement itself (referring to the parties’ agreement to remediate and perhaps also relying on an implied term in terms of the Council’s responsibility for remediation) is open to the plaintiffs.
[43] I do not consider the arguments advanced by the Council, based on the scheme of the Building Act 2004 as it would apply if the Council’s responsibilities were limited to those which it accepts, help the Council. That is because those arguments beg the question at issue here: that is, whether properly pleaded, the Council’s responsibilities could go beyond that.
[44] I have considered whether the inadequacy of the plaintiffs’ pleading is a reason to decline relief. I am satisfied that they are not. In Couch v Attorney- General, the Chief Justice acknowledged that the “claim is barely developed”.15 She then listed a series of defects in the pleadings, and went on to comment:
[31] With such foundations, it may have been inevitable that the arguments addressed to us on behalf of the plaintiff lacked focus. That, it has to be said, is not uncommon where questions of legal liability come to be determined on a summary basis ahead of findings of fact. In Takaro Properties Ltd (in receivership) v Rowling for example, the pleadings were acknowledged to be “obscure”. They did not distinctly identify the carelessness said to be causative of loss. Despite these deficiencies, the Court of Appeal unanimously reinstated the proceedings, which had been struck out in the High Court. Richmond P referred with approval to the view of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) that the jurisdiction summarily to terminate an action where it is so
15 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [30] (citations omitted).
clearly untenable that it cannot succeed is to be “sparingly employed” and is
not suitable for use:
except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
[45] I consider those comments answer my concerns here, recognising that the plaintiffs’ statement of claim, whilst a little confused factually and incomplete legally, was not as defective as would appear to have been the case in Couch.
[46] By my assessment the Council is, in effect, endeavouring to limit its duties under the Settlement Agreement to those the breach of which it settled with Kingdom by confidential side agreement. However pleaded, I consider it is clearly arguable that those duties are not so limited.
[47] I therefore decline the Council’s application for strike out. The plaintiffs’
claim will have to be repleaded. That is a matter for the plaintiffs. [48] Costs are reserved.
Clifford J
Solicitors:
Grimshaw & Co, Wellington for plaintiffs. Simpson Grierson, Wellington for defendant.
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