Dron v Home Design Company Limited
[2021] NZHC 2883
•28 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001426
[2021] NZHC 2883
BETWEEN CHRISTOPHER ROBIN DRON and KATHRYN SARAH DRON
PlaintiffsAND
HOME DESIGN COMPANY LIMITED
First Defendant
CONCRETE ENGINEERING LIMITED
Second DefendantAUCKLAND COUNCIL
Third Defendant
Hearing: On the papers Counsel:
M L Greenhalgh and S N Zellman for Plaintiffs
M O Robertson and H E Bridgman for Second Defendants and First Third Party
Judgment:
28 October 2021
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
This judgment was delivered by Associate Judge Andrew on 28 October 2021 at 2.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date …………………………
DRON v HOME DESIGN CO LTD & ORS [2021] NZHC 2883 [28 October 2021]
Introduction
[1] This is defective building litigation. It concerns the plaintiffs’ new home in Greenhithe.1 The plaintiffs allege that the defendants are responsible for significant inadequacies in the design and construction of the concrete raft slab and pile foundations to the home.
[2] In the present interlocutory application the plaintiffs seek orders requiring the second defendant, Concrete Engineering Ltd,2 to answer interrogatories. CEL prepared structural designs for the concrete raft slab and pile foundations. It was engaged by the first third party, QS Building Ltd, to do so. The plaintiffs’ proposed interrogatories are directed, it says, at the underlying facts and assumptions CEL applied in its designs.
Leave application
[3] The plaintiffs also apply for leave to bring the application as the date for the close of interlocutory applications in the Court’s timetable directions has passed.3 The plaintiffs say they were not in a position to file the application on time as its necessity was not apparent until May 2021. The plaintiffs say there will be no prejudice to the defendants if leave is granted, but the plaintiffs will be significantly prejudiced if leave is declined on the bases they will not be able to adequately prepare their evidence in chief, nor be able to pursue alternative dispute resolution at an early stage.
1 The property.
2 CEL.
3 Counsel for the plaintiffs does not cite which rule they see leave under, however I assume leave is sought under r 7.7 of the High Court Rules 2016, which provides:
7.7 Steps after close of pleadings date restricted
(1)No statement of defence or amended pleading or affidavit may be filed, and no interlocutory application may be made or step taken, after the close of pleadings date without the leave of a Judge.
(2)Subclause (1) does not apply to –
(a)an application for leave under that subclause; or
(b)a pleading or an affidavit that merely brings up to date the information before the court; or
(c)an application for amendment of a defect or an error under rule 1.9.
[4] CEL neither consents nor opposes the leave application and will abide the decision of the Court.
[5]I grant leave.
Interrogatories application
[6] The plaintiffs say there are a number of disputed issues of fact in the proceedings which the interrogatories seek to address:
(a)Which of the several designs prepared by CEL was used in the construction of the slab and piles;
(b)What assessment methodology CEL used to determine that the designs would comply with the Building Code4 and NZS3101.1&2:2006 and AS 2870-2011;
(c)What assessment methodology CEL used to determine that the designs would allow for the soil conditions at the property and its close proximity to a Watercare drain;
(d)What information or documentation CEL had at the time it undertook property inspections;
(e)What information or documentation CEL had at the time it issued its producer statements; and
(f)What the appropriate scope of repair is, including whether any part of the concrete slab and piles can be retained.5
4 See Building Act 2004, sch 1.
5 The first defendant, Home Design Co Ltd, who engaged QS Building Ltd, contends that the plaintiffs have failed to mitigate their losses on the basis that the concrete slab and piles can be retained.
[7] CEL accepts the plaintiffs’ proposed interrogatories are relevant. However, it objects to the proposed interrogatories as oppressive, and not properly amenable to the interrogatories process, on two bases:
(a)They do not seek answers to facts, but seek evidence of facts in dispute; and
(b)They are open-ended and incapable of direct responses.
[8] CEL also says the application should not be granted because the information the plaintiffs seek to obtain via the defendants’ answers to the proposed interrogatories will soon be available in the parties’ exchange of evidence.
Legal framework
[9]Rule 8.38 of the High Court Rules provides:
8.38 Order to answer
(1)A Judge may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) a statement prepared in accordance with rule 8.39 in answer to interrogatories specified or referred to in the order.
(2)The interrogatories must relate to matters in question in the proceeding.
(3)The order may require the statement to be verified by affidavit.
(4)The Judge must not make an order under subclause (1) unless satisfied that the order is necessary at the time when it is made.
[10] Rule 8.40 then provides the bases on which a party may mount an objection to an interrogatory, and the bases on which the Court may resolve it:
8.40 Objection to answer
(1) A party may object to answer an interrogatory on the following grounds only:
(a)that the interrogatory does not relate to a matter in question between the parties involved in the interrogatories:
(b)that the interrogatory is vexatious or oppressive:
(c)that the information sought is privileged:
(d)that the sole object of the interrogatory is to ascertain the names of witnesses.
(2) It is not a sufficient objection that the answer to an interrogatory will determine a substantial issue in the proceeding.
(3) On an application under r 8.36 in respect of an interrogatory, a Judge may –
(a)require the applicant to specify on what grounds the applicant objects to answer that interrogatory; and
(b)determine the sufficiency of the objection.
(4) If the Judge determines that the objection is not sufficient, the application is not entitled to object to answer the interrogatory.
[11]The objects of interrogatories are to:6
(a)Obtain admissions;
(b)Reveal weakness in the other party’s case;
(c)Obtain information as to underlying, material facts which the plaintiff must establish to prove its case;
(d)Ascertain details of aspects of the other party’s case so as to reduce surprise when statements are served, or at trial;
(e)Obtain clarification of the other party’s case and limit the other party’s ability to depart from its case as clarified; and
(f)Narrow the issues between the parties and thus reduce the expense and length of trial, including the expense at earlier stages of litigation such as disclosure of documents and statements of witnesses.
6 Paul Matthews and Hodge M Malek Disclosure (5th ed Sweet & Maxwell, London, 2017) at 15.28;
Ash v Singh [2019] NZHC 2790 at [179]; Wright v Attorney-General [2021] NZHC 18 at [13].
[12] The Court of Appeal expanded on this in Todd Pohokura Ltd v Shell Exploration NZ Ltd, relevantly:7
[14] It is appropriate to summarise briefly the nature, purpose and permissible scope of interrogatories. An interrogatory is a question asked before trial for the purpose of eliciting an answer on oath or affirmation which is admissible in evidence at trial. Like all questions, it must be directed towards advancing one side’s case or damaging the other’s case. It must accordingly be relevant to an issue raised on the pleadings or a fact in dispute for determination.
[15] An interrogatory must also, like a question in cross-examination, be precise and unequivocal, and amenable to a direct and meaningful answer from information within the knowledge of or reasonably available to the person required to answer. It must not place unnecessary or burdensome obligations on the interrogated party, or be prolix. And its purpose must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing). A question which offends these elements will fall within the general category of oppressiveness.
[16] An interrogatory is an exception to the manner of adducing evidence and in particular to a defendant’s right not to call evidence at trial. Accordingly, the Court must be satisfied that the interrogatory is necessary before an application to issue a derogatory is opposed: r 8.5 High Court Rules. A material consideration is whether briefs of evidence will be given by the party to be interrogated. Moreover, an interrogatory is not to be confused with a request for further particulars.
[13]And, as stated by Bell AJ in Wright v Attorney-General:8
[13] Because interrogatories are about facts only, they cannot be used to debate or argue the merits of the case. That is instead for submission at the substantive hearing. Questions directed at making the other side justify their case on the facts they have pleaded go beyond the scope of interrogatories. I call these “Please explain” requests. Questions seeking opinions or assessments are not about facts.
The pleadings
[14] The plaintiffs allege that CEL is liable in negligence on the basis that it owed the plaintiffs a duty to exercise reasonable skill and care when:9
(a)Preparing the CEL design and issuing a PS1 producer statement, to ensure the CEL design complied with the Building Code and all relevant technical literature, including NZS3101:2006 and AS2870;
7 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561.
8 Wright v Attorney General, above n 6.
9 Plaintiffs’ Statement of Claim dated 31 August 2020 at [45].
(b)Supervising and inspecting the construction of the foundation piles and raft slab, to ensure that the construction was in accordance with cl B1of the Building Code and the Building Consent;
(c)When attending inspections with Auckland Council, to ensure that Council were aware the construction was in accordance with the CEL design and not the Consented design;
(d)When preparing a PS4 producer statement, to ensure that the construction was in accordance with cl 1 of the Building Code and Building Consent.
[15]In breach of its duty of care, the plaintiffs allege that CEL:10
(a)“Failed to design the foundation piles and raft slab in accordance with the Building Code B1 (Structure)”;
(b)“Issued a PS1 producer statement confirming compliance with the Building Code and all relevant technical literature, when by virtue of alleged defects 3 [inadequately reinforced concrete piles], 4 [inadequate concrete footings], 5 [inadequately reinforced raft slab], and 6 [inadequately prepared raft slab boxing and reinforcing], this is not the case”;11 and
(c)“Issued a PS4 producer statement confirming compliance with the consented designed when by virtue of alleged defects 3, 4, 5 and 6, this is not the case.”
Analysis
[16] CEL accepts the proposed interrogatories concern core matters at issue between the parties, namely whether the CEL foundation and raft slab design is compliant with the Building Code and complies with the consented design. The interrogatories are thus directly and materially relevant to the cause of action against CEL.
[17] In support of their application, the plaintiffs submit that in order properly to peer review an engineering design, the reviewer must know the facts and assumptions applied in the design and as checked during construction. In his affidavit, Mr McKenzie, the plaintiffs’ expert, states that it is not apparent:
(a)Which of the CEL designs were constructed;
10 Plaintiffs’ Statement of Claim dated 31 August 2020 at [46]. Particulars omitted.
11 See “Schedule 3 – Defects & Repairs” to the plaintiffs’ Statement of Claim dated 31 August 2020.
(b)Which standards (including NZS3101) (Concrete), ground conditions, earth pressures, differential settlement, and materials were assessed when preparing the design; and
(c)On what grounds compliance was assessed during inspections.
[18] I accept, as the plaintiffs submit, that it is reasonable for them to have some understanding of the details of the design and construction before they prepare their own briefs of evidence. It may well be, as they claim, that in respect of the raft slab and pile design and construction, that CEL “holds all of the cards”. Equally, answers to the proposed interrogatories might provide clarity on key issues and primary facts since it would allow the plaintiffs’ engineering expert to properly review the design and confirm whether it has been constructed in accordance with the Building Code.
[19] I accept that in principle there is a genuine and legitimate basis for the plaintiffs to bring an application for interrogatories of some kind, and with a view to narrowing the issues and reducing the expense and length of trial. However, interrogatories must be drafted with “rigorous precision”.12 Here, there is a fundamental problem with the framing of the plaintiffs’ proposed interrogatories which, in substance, seek to compel CEL to justify its design decisions and to set out the grounds for its belief that regulatory compliance had been achieved. I find, therefore, such substantial open- ended questions are impermissible as interrogatories. They constitute proscribed interrogation into evidence or the contents of briefs or the way in which CEL intends to defend its case. Accordingly, I decline to make orders requiring the defendants to answer the plaintiffs’ proposed interrogatories. My reasons follow.
[20] The plaintiffs’ application seeks orders requiring the defendants to answer 32 questions. I accept the defendants’ objection that the majority of the proposed interrogatories seek opinions and assessments from CEL on decisions it made on various aspects of the CEL design. A sample of the proposed interrogatories exemplifies this issue:
12 Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984-85) 57 ACTR 32 (SC) at 34 per Blackburn CJ: see AC Beck McGechan on Procedure (online ed, Thomson Reuters) at [HR8.34.10].
[3](a) By reference to specific plans and calculations, in what way/s did CEL account for class M moderately expensive soil in the pile design?
[3](b) By reference to specific plans and calculations, in what way/s did CEL ensure compliance with NZS3101:2006 in the pile and raft slab design?
[3](c)By reference to specific plans and calculations, in what way/s did CEL account for potential lateral earth pressures acting on the piles and raft slab in the event of future Watercare pipe excavation?
[21] In substance, most of the interrogatories sought are “please explain” requests. I accept, as the defendants submit, that the answers will be multi-layered and nuanced. The proposed interrogatories are largely not precise and amenable to direct, concise and meaningful answers; instead, they appear to require qualitative and quantitative responses. By way of further example, proposed interrogatory [12](a) provides:
In relation to the email dated 27 May 2020 from CEL to Chris Adams … What was the basis for the opinions contained therein?
[22] I acknowledge that some of the interrogatories make some attempt to confine the scope of the question to specific documents, including plans and calculation. For example, proposed interrogatories [3](i) and (j) read:
(i)By reference to specific plans and calculations, in what way/s did CEL calculate the minimum percentage of longitudinal steel piles?
(j)By reference to specific plans and calculations, in what way/s did CEL design the piles to be tied into the footings?
[23] Again, however, the questions are framed in the wrong manner; the better and permissible approach would have been to have questioned whether CEL prepared minimum percentage calculations for the longitudinal steel piles and which specific documents record those calculations.
[24] CEL relies on Whata J’s recent decision in Waitakere Group Ltd v James Hardie NZ Ltd.13 I agree that decision assists in that it raised similar problems to those I have identified with the plaintiffs’ proposed interrogatories. In that case, the plaintiff’s application sought answers to interrogatories in relation to the testing of two former James Hardie cladding products, which the plaintiff alleged were defective,
13 Waitakere Group Ltd v James Hardie NZ Ltd [2021] NZHC 1052.
and statements by James Hardie.14 Justice Whata concluded that some of the interrogatories were permissible: they asked precise questions demanding categorical “yes” and “no” answers about, for example, the scope and substance of testing;15 and they were necessary and not unduly burdensome for James Hardie to answer. However, Whata J excluded other interrogatories as oppressive for lack of precision because:
[22] … details relating to who conducted the tests and the results, may require answers that are multi-layered or nuanced and are not amenable to the interrogatory process I am not clear what “results” the plaintiffs seek and,
in any event, the “results” may depend largely on expert interpretation. It is not properly a matter amenable to an interrogatory. Similarly, the question of “who” is open-ended: for example, does it refer to a lead expert, a manager, a director, or a lab assistant? …
…
[24] These questions are problematic insofar as they involve a de-facto discovery exercise and are open-ended. They are not about primary fact- gathering. They are not, therefore, properly amenable to the interrogatory process.
[25] Here, the plaintiffs’ proposed interrogatories suffer from this same imprecision and open-endedness and are not amenable to the clear, fact-based answers that interrogatories must properly demand. It may be that some of the interrogatories (in my view, a limited number) could be re-formulated in a permissible manner. However, in litigation of this kind, where experts’ guidance is obviously required to draft proposed interrogatories, it is not the Court’s role to re-cast some of the questions which might be reframed in a permissible manner. That is for the plaintiffs’ solicitors, in conjunction with their expert. It will be important, however, that any re-framed interrogatories not be burdensome.
[26] For the foregoing reasons, I find the proposed interrogatories are oppressive and the plaintiffs’ application should be dismissed. However, I consider some opportunity should be afforded to the plaintiffs to file an amended application with a discrete number of permissible proposed interrogatories on the terms set out below. The plaintiffs will of course also need to meet the threshold of necessity in r 8.38(4).
14 At [3].
15 At [17].
Result
[27] I grant the plaintiffs leave to bring their application dated 16 July 2021 for orders requiring CEL to answer interrogatories.
[28]However, I decline to grant the application.
[29] I reserve leave to the plaintiffs to file any amended application which is to be filed and served by 26 November 2021. It may well be that some discussion between the parties as to the scope of the interrogatories and the matters of concern to the plaintiffs might assist in resolving any outstanding interrogatory issues.
[30] As to costs on the current application, I am of the preliminary view that, having succeeded, CEL is entitled to costs on a 2B basis plus disbursements. If agreement cannot be reached, then memoranda (no more than three pages) are to be filed and served within 14 days.
Associate Judge P J Andrew
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