Farrelly v Wellington City Council

[2021] NZHC 1493

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-692

[2021] NZHC 1493

BETWEEN

PATRICIA ELIZABETH FARRELLY & ORS

First to Thirty-Eighth Plaintiffs

AND

WELLINGTON CITY COUNCIL

First Defendant

GPE HOLDINGS LTD
Second Defendant

CRAIG ALAN STEWART
Third Defendant

STRATUM MANAGEMENT LIMITED
Fourth Defendant

DAVID EDWARD STEWART
Fifth Defendant

ROBERT ARTHUR CLEMENS
Sixth Defendant

ROBERT JOHN BONNER
Seventh Defendant

RONALD FREDERICK THURLOW
Eighth Defendant

JULIA LOUISE LELOIR
Ninth Defendant

JULES CONSULTANCY LIMITED
Tenth Defendant

TWA INVESTMENTS LIMITED

Eleventh Defendant

Hearing: 3 June 2021

FARRELLY v WELLINGTON CITY COUNCIL [2021] NZHC 1493 [22 June 2021]

Appearances:

E S K Dalzell for the plaintiffs/respondents

H B Rennie QC, P A Morten and R P Conner for the second to sixth and eleventh defendants/applicants

Judgment:

22 June 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]        This an application pursuant to r 8.42 of the High Court Rules 2016 by the second to sixth and eleventh defendants for orders requiring certain plaintiffs (there are 37 in total, following the withdrawal of the fourth plaintiff from the proceeding) to provide further answers to interrogatories.

[2]It is opposed by the plaintiffs.

[3]        An application to strike out aspects of the plaintiffs’ claims is set down to be heard over four weeks commencing on 16 August 2021. I am informed, and accept from counsel, that whether or not the plaintiffs are required to provide further answers to the interrogatories may have some relevance for that application. On that basis, I accept that there is a degree of urgency connected with getting this judgment out. Other obligations have prevented me from doing so before now.

[4]Rule 8.42 provides:

8.42     Insufficient answer

If a party fails to answer an interrogatory sufficiently, a Judge may, in addition to acting under rule 7.48,—

(a)if the party has made an insufficient answer, order the party to make a further answer verified by affidavit in accordance with rule 8.38; or

(b)order the party, or any of the persons mentioned in rule 8.41(1)(b) to (d), as the case requires, to attend to be orally examined.

Interrogatory 5(a)

[5]Interrogatory 5(a) provides:

(a)If you purchased from a prior owner other than the developer, please specify whether the agreement for sale and purchase contained an assignment of rights in relation to any of the alleged defects and if yes, then set out the terms of that assignment in full.

[6]        Thus the applicants are seeking to ascertain whether owners who did not acquire their properties from the developer, and who, in that sense, are not original owners, entered into arrangements with the former owners from whom they purchased their properties in relation to any defects.

[7]        The few remaining original owners, namely the 18th, 21st, 32nd, 34th, 35th and 38th plaintiffs, are not asked to answer this interrogatory.

[8]        The continuing plaintiffs other than those mentioned have all objected on the ground of relevance, and they have all given the same answer:

I object to answer. The question is not relevant because no assignment is required to find a duty of care and negligence.

[9]        The plaintiffs say that that issue is irrelevant because “… the existence or not of a contractual assignment does not preclude direct or indirect reliance by any of the plaintiffs on misleading or deceptive and/or unconscionable conduct by the defendants. And therefore, causation of loss”. In addition, Mr Dalzell contends that answering the interrogatories would serve no useful purpose as it would not provide the defendant with any further information than they will obtain when the plaintiffs discover their sale and purchase agreements.

[10]      In my judgment, on any view of the case, the terms of the sale and purchase arrangements, whether or not these addressed defects, and if so whether the sale and purchase price was adjusted, may be relevant to important issues in the case, not least any limitation defences and quantum. Nor, in my assessment, would the provision of responsive answers to interrogatory 5(a) place an unreasonable burden on the plaintiffs in question. All it would require a plaintiff to do would be to answer yes or no to the first component of the interrogatory, and, if the answer were to be yes, to provide details of the relevant terms.

[11]      I propose to order that the relevant plaintiffs file and serve further answers to interrogatory 5(a).

Interrogatory 5(d), (i)–(o)

[12]      These interrogatories, in respect of which responses are sought from all continuing plaintiffs, are in the following terms:

(d) Please specify which elements of construction are alleged to have not been completed in relation to your unit as at the date of issue of your proceeding.

…

(i)Please specify whether any remedial action was taken in relation to each alleged defect and, if more than one defect, each occasion of action by or on behalf of either yourself or any of the defendants and if so, by whom and when.

(j)Please specify whether you received or were otherwise aware of representations (by way of either words or conduct) made that any of the defendants would accept responsibility for all weathertightness issues at Greta Point and if so, by whom and when.

(k)Please specify whether you received or were otherwise aware of representations (by way of either words or conduct) made that any of the defendants would attend to all weathertightness issues in relation to any incomplete construction and/or the repair of any defect in relation to your unit, and if so, by whom and when.

(l)Please specify whether you received or were otherwise aware of representations (by way of either words or conduct) made that the scope and quality of the work that any of the defendants proposed and undertook was sufficient, and if so, by whom and when.

(m)Please specify whether you received or were otherwise aware of representations (by way of either words or conduct) made that the work of CAS  Properties,  Craig  Stewart,  TWA, SML  and/or David Stewart had been and would be properly completed to address all weathertightness issues at Greta Point and if so, by whom and when.

(n)Please specify whether you received or were otherwise aware of representations (by way of either words or conduct) made that building consents were not required for remedial or repair work and if so, by whom and when.

(o)Please specify whether you received or were otherwise aware of representations (by way of either words or conduct) made by any party that you would receive ongoing assistance with weathertightness repair work by the CAS Parties and if so, by whom and when.

[13]All plaintiffs have responded with the same answer:

I object to answer. The question is not relevant, because the plaintiffs’ negligence and continuing duty of care claims arise from a series of related acts or omissions involving the construction and/or repair of the Greta Point complex, not each house.

On behalf of the plaintiffs, I do say that as a matter of fact there are documentary records of building work/repairs by CAS parties on at least 74 of the 91 units at Greta Point from 2003, including at least 20 of the units owned by the plaintiffs. Some units have been subject to multiple attempted repairs by CAS parties. The plaintiffs can find no documentary record or other evidence of any building consents or Code Compliance Certificates (CCC) having been issued for all but 4 (four) of these repairs. The applicants say that this response to interrogatories 5(d) and (i)–(o) are insufficient because they are: evasive, vexatious, contain irrelevant information, relating to building to building consent and code compliance certification for repair work, inappropriately purport to answer “on behalf of the plaintiffs) and do not property respond to the questions asked and/or do not provide a response the questions at all.

[14]On behalf of the applicants Mr Rennie submitted this response:

48.As set out in the present application for orders under HCR 8.42, the responses provided in respect of paragraph 5(d) and by extension, paragraphs 5(i)–(o) are insufficient in that they are:

(a)evasive;

(b)vexatious;

(c)contain irrelevant information, relating to building consent and Code Compliance certification for repair work;

(d)inappropriately purport of [sic] answer “on behalf of the plaintiffs”; and

(e)do not properly respond to the questions asked and/or do not provide a response to the questions at all.

49.Again, each response commences with an erroneous assumption that the interrogatory relates only to one of that plaintiff’s three causes of action; fails to provide the facts known to that plaintiff; and is an argumentative submission on law, not a factual response.

[15]They certainly do not answer any of the questions.

[16]      Whilst the plaintiffs’ responses refer to relevance, as I understood Mr Dalzell’s argument, his primary focus in relation to interrogatory 5(d) was that it is unclear. The asserted lack of clarity concerns the phrase “elements of construction”. He says that

it was the use of that terminology that invited the response. Secondly, Mr Dalzell submitted that answering all of these interrogatories would place an unreasonable burden on the plaintiffs.

[17]      I do not accept the contention that interrogatory 5(d) is unclear. What the defendants are asking each plaintiff, in the face of a general allegation that the development remained incomplete as at the date of the commencement of this proceeding, is the respects in which each owner says that their unit was incomplete as at that date. Nor do I accept that responding to this interrogatory would be oppressive.

[18]      At least insofar as interrogatories 5(i)–(o) are concerned, the plaintiffs’ oppression argument appears to me to be closer to the mark. As Mr Dalzell submits these interrogatories would require each plaintiff to provide a comprehensive description of the evidence on which they will be relying at trial.

[19]      I accept of course that the view that there is a clear demarcation line between pleadings and evidence no longer holds sway. Nevertheless, it appears to me that interrogatories 5(i)–(o) overstep the mark, effectively requiring each plaintiff to provide a brief of evidence detailing the history of building and repair work and representations or conduct over a considerable period of time.

[20]      I propose to order that the plaintiffs file and serve further answers to interrogatory 5(d), but decline to make a corresponding order in relation to interrogatories 5(i)–(o).

Conclusion

[21]      For those reasons, I order that the continuing plaintiffs other than the 18th, 21st, 32nd, 34th, 35th and 38th plaintiffs provide further sworn responses to interrogatory 5(a) and all plaintiffs provide further sworn responses to interrogatory 5(d). These should address the questions asked fully and fairly as required by the Rules. This is to be done within 10 working days of the date of this judgment. The application relating to interrogatories 5(i)–(o) is dismissed.

Costs

[22]      As I see it both parties have had a measure of success and my inclination is to think that costs should be left to lie where they have fallen. However, not having heard from counsel on this, I reserve costs. If counsel cannot sort these out, as I would expect them to do, they may revert by memoranda in the usual way.

Associate Judge Johnston