Fussell v Wellington City Council

[2013] NZHC 179

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-643 [2013] NZHC 179

BETWEEN  CHARLES RICHARD FUSSELL AND CHRISTINE HEATHER FUSSELL Plaintiffs

ANDWELLINGTON CITY COUNCIL Defendant

ANDBELLEVUE LANDS LIMITED First third party

JOHN EVERISS Second third party

MARTIN JOHN TEDDER Third third party

STEPHEN DEAN Fourth third party

JOHN EVERISS CONTRACTORS LIMITED

Fifth third party

JAMES HARDIE NEW ZEALAND LIMITED

Sixth third party

BRANZ LIMITED Seventh third party

ANDDAVID LAWRENCE DAVIES AND MICHAEL JOSEPH THOMPSON Fourth parties

Hearing:         4 February 2013

Counsel:         J D Haig for fourth parties/applicant

M Freeman and S J Parry for third third party/respondent

Judgment:      13 February 2013

FUSSELL v WELLINGTON CITY COUNCIL HC WN CIV-2012-485-643 [13 February 2013]

RESERVED JUDGMENT OF DOBSON J

[1]      In these proceedings, the plaintiffs are homeowners in residential Wellington. They purchased their home in March 2010 and discovered it was not sufficiently watertight in early 2012.

[2]      The house had been constructed from about February 2001 and the defendant (WCC), in its capacity as territorial authority under the Local Government Act 2002, issued a post completion code compliance certificate dated 20 June 2002.

[3]      The plaintiffs have sued only WCC, alleging negligence in numerous aspects of its involvement from the issue of the building consent to the issue of the code compliance certificate.

[4]      In its turn, WCC issued third party proceedings against the developer and various parties it alleges were involved in construction of the house.  Among those, Mr Tedder, the third third party, was joined on the basis of allegations that he traded as M & D Textures, and was responsible for the application of the exterior texture coating and substrate to the property.

[5]      The WCC’s third party proceedings appear to have been commenced barely within 10 years from the date on which work on the house was completed. After the expiry of more than 10 years since completion of the physical works, Mr Tedder commenced a claim of his own by way of a fourth party notice against the fourth parties, Dave Davies and Mick Thompson, whom he sued as a partnership trading as M & D Decorators and M & D Textures.  In a cause of action labelled as “common law duty to indemnify/implied term of employment agreement”, Mr Tedder alleges as follows:

9.        At all relevant times, the Third Third Party was an employee of the

Fourth Parties.

10.At all time the Third Third party’s involvement in the work at the property was in the course of his employment with, and/or as an agent of, the Fourth Parties.

11.       The Fourth Parties have a duty, both at common law, and as an implied term of their employment agreement with the Third Third Party, to indemnify him in respect of any liability or costs incurred in, or as a result of, the reasonable performance of his employment.

12.The Third Third Party at all time acted reasonably, in accordance with the directions of the Fourth Parties, and in accordance with his duties as an employee, in carrying out work at the property.

13.If the Third Third Party is found to have any liability in respect of the claim or the defendant’s claim against third parties (any liability is denied) it says that:

a.Any liability was the result of the reasonable performance of his employment with the Fourth Parties

b.The Fourth Third Parties [sic] have a duty to indemnify him in respect of any such liability.

14.In  any  case  the  Third Third  Party  says  that  the  cost  to  him  of defending the claims against him in this proceeding are a cost incurred   as   a   result   of   the   reasonable   performance   of   his employment and the Fourth Third Parties [sic] have a duty to indemnify him in respect of his actual and reasonable legal costs in defending these claims.

[6]      This  judgment  determines  the  fourth  parties’  application  to  strike  out Mr Tedder’s statement of claim against them.  The fourth parties argue that the claim against them is time barred by the provisions in the Building Act 1991 or 2004, or alternatively that if it is not time barred, then the High Court does not have jurisdiction  because  it  is  a  claim  that  relates  to,  or  arises  from,  an  alleged employment relationship, thereby coming within the exclusive jurisdiction of the Employment Relations Authority and the Employment Court.

[7]      In the alternative, the fourth parties seek summary judgment determining that they have no liability of the type alleged against them.  That alternative relies on the same grounds as the strike out.

[8]      An applicant seeking to strike out a cause of action must establish that it is clearly untenable.   It is a jurisdiction to be exercised sparingly, and only in clear cases, but the Court should not decline the strike out merely because it involves decisions on difficult questions of law.1

[9]      To succeed in a defendant’s application for summary judgment, the defendant must  similarly  establish  that  the  claimant’s  cause  of  action  could  not  possibly succeed, or that there is a clear answer to the claim which cannot be contradicted.2

[10]     It  appeared  to  be  common  ground  that  in  terms  of  the  more  generally applicable limitation provisions in the Limitation Acts 1950 and 2010, time would run for a claim in breach of contract from the date of the alleged breach of duty. That  could  only  arise  when  the  fourth  parties  were  requested  to  acknowledge liability to indemnify Mr Tedder, and they refused to do so. Accordingly, no issue of the claim being out of time on that basis arose.

[11] The time bar issue instead focused on the specific “long stop” limitation provision in relation to building works, which appeared in substantially similar terms in both the Building Act 1991 and the Building Act 2004. The provision in the latter act is in the following terms:

393     Limitation defences

(1)      The Limitation Act 2010 applies to civil proceedings against any person if those proceedings arise from—

(a)      building work associated with the design, construction, alteration, demolition, or removal of any building; or

(b)       the performance of a function under this Act or a previous enactment relating to the construction, alteration, demolition, or removal of the building.

(2)       However, no relief may be granted in respect of civil proceedings relating to building work if those proceedings are brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.

[12]     Counsel’s arguments on the application of this long stop limitation focused mainly on four decisions that have made difficult demarcations in the extent of its scope.  The decisions include reflections on the purpose of the long stop limitation being enacted specifically in relation to building works, and the rationale for either applying it or excluding it, in a range of situations directly involving, or being distanced from, the design and carrying out of building works.

[13]     Chronologically, the first of those cases is the December 2001 decision in

Klinac v Lehmann.3

[14]     In that case, a purchaser of the relevant property, who had been sued for failing to complete the purchase of the property, pleaded in his statement of defence and a counterclaim that Mr Klinac as the vendor/plaintiff had breached warranties and made misrepresentations.  These were to the effect that work on the property had been completed in accordance with permits issued and that all obligations imposed under the  Building Act  had  been  fully complied  with.   The District  Court  had decided that a component of this allegation raised as a contractual defence was statute-barred by virtue of s 91(2) of the Building Act 1991, but that the claim of a pre-contractual  misrepresentation  was  not  similarly  barred  by  the  long  stop provision.

[15]     Mr Klinac appealed, and Glazebrook J held that the long stop provision in relation to building work should not apply to either component of the defence and counterclaim raised on behalf of the defaulting purchaser.4   Her Honour’s judgment treated the long stop provision as applying differently to claims in negligence and claims in contract, suggesting that in the contractual context, because time runs from date of breach under the Limitation Act, the long stop provision of 10 years under the Building Act is most often likely to be irrelevant.  On the situation in that case, she considered that the “act or omission” in the contract claims did not refer to the

building work itself, but rather the making of the representation or provision of the warranty.  The faulty building work was relevant only because it would prove that the representation was a misrepresentation or that the contract had been breached.  If a contractual claim in respect of a warranty or representation as to the status of building work was treated as a claim in respect of the building work itself, then for representations  or  warranties  in  respect  of  works  done  more  than  10  years previously, the warranty or representation would be worthless from the date it was

given, and that could not have been Parliament’s intention.

3      Klinac v Lehmann HC Whangarei AP15-01, 6 December 2001.

4      There was no cross appeal from the striking out of the contractual defence, so that the effect of the decision was confined to dismissing Mr Klinac’s appeal.

[16]     Accordingly, Klinac excluded the long stop provision on the basis that the building work was not the act or omission on which the proceedings were based.

[17]     The second decision was that of the Court of Appeal in Johnson v Watson, delivered in December 2002.5

[18]     Mr Watson  had  built  a  house  for  the  Johnsons  pursuant  to  informal contractual arrangements.  The Johnsons sought to bring claims under three heads in respect of faulty work on the house:

(a)       defects in the original work;

(b)      defects in remedial work undertaken over a period of time; and

(c)       misrepresentation in Mr Watson’s assurances that the remedial steps

undertaken would be effective to cure all the defects.

[19]     The Johnsons sought to argue on this last head that their reliance on the incorrect assurance that all defects would be cured by the remedial work had caused them not to bring claims within time against others who may have had liability to contribute to the losses they claimed.

[20]     The original work on the house had been completed more than 10 years before the claim was commenced so that that head of claim was out of time in terms of the 10 year long stop limitation period.  Some of the remedial work was also out of time, but the Court of Appeal confirmed that the time bar did not prevent claims that related to the discrete heads of loss arising from remedial work allegedly not done competently in the period of 10 years prior to commencement of the claims.

[21]     The Court  of Appeal  rejected the notion  that  allegations  of fraud  in  the misrepresentations pleaded in the third head of claim would extend the commencement of the period of 10 years, as provided for in s 28 of the Limitation

Act 1950.   That provision postpones the commencement of the limitation period

5      Johnson v Watson [2003] 1 NZLR 626 (CA).

under conventional limitation provisions where fraud is alleged, but could not have any effect on the calculation of time under the Building Act provision which runs from the act or omission in the building work on which the proceedings are based.

[22]     The decision confirmed that where the claim relates to alleged defects in building work, then the long stop provision in the Building Act is a self-contained limitation that will apply after 10 years from the date of the alleged act or omission by the defendant in carrying out a component of the relevant building work.

[23]     The third case was Dustin v Weathertight Homes Resolution Service, a May

2006  decision  on  judicial  review  from  a  decision  of  an  adjudicator  under  the

Weathertight Homes Resolution Service Act 2002.6

[24]     The  local  authority  in  that  case  had  joined  Mr Dustin,  an  architectural designer, on the basis that the Council claimed contribution from him as a joint tortfeasor  under  s 17(1)(c)  of  the  Law  Reform Act  1936.    The  adjudicator  had declined to strike out the claim joining Mr Dustin, even although the work he was involved in was more than 10 years before the Council’s initiative to join him.  In doing so, the adjudicator had relied on an earlier High Court decision in Cromwell

Plumbing Drainage and Services Ltd v De Geest Bros Construction Ltd,7 in which it

had been held that a claim for contribution from an alleged joint tortfeasor was not subject to the long stop period imposed under s 91(2) of the Building Act 1991.

[25]     Courtney J treated the long stop provision as being in plain terms, and that it meant what it says.  The basis of the claim against Mr Dustin was his involvement in the building work and  the long stop limitation provision was intended to bring finality to the prospect of claims against those who contributed to allegedly defective building work.  Although the Council was seeking a contribution to its own liability, rather than a claim measured by reference to the alleged defects in the building work itself, its claim related to a liability that reflected the building work as that was

defined.

6      Dustin v Weathertight Homes Resolution Service HC Auckland, CIV-2006-404-276, 25 May

2006.

7      Cromwell Plumbing Drainage and Services Ltd  v  De Geest Bros Construction Ltd  (1995)

9 PRNZ 218 (HC).

[26]     Courtney J treated the definition of “building work” in s 2 of the 1991 Act (which includes the words “work for or in connection with the construction, alteration, demolition or removal of a building; and includes site work”) as having a wide meaning, with the words “… in connection with …” merely requiring a relationship between one thing and another.  The extent of connection was seen as easily accommodating a claim for a contribution as based on the claimant’s own liability for building work, where the defendant had contributed to the work.  The status of the claim as being one for contribution invoking s 17(1)(c) of the Law Reform Act was held not to be relevant to interpreting the scope of claims to which the limitation period would apply.

[27]     Courtney J distinguished the long stop provision in the Building Act from conventional limitation provisions because it is measured from the date of the act or omission,  not  the  accrual  of  a  cause  of  action,  which  may  involve  more considerations and a different time span than is the case for contract or tort claims under the Limitation Act.

[28]     The fourth case considered was the Court of Appeal’s decision in Gedye v

South from May 2010.8

[29]     The Gedyes had had work done on their residential property in 1997.  They sold it in 2003 pursuant to an agreement for sale and purchase including a standard clause which warranted that any works undertaken and which had required a permit (the 1997 works did) were performed in full compliance with all obligations imposed under the then operative Building Act 1991.  The respondents to the appeal were the trustees of a family trust that had purchased the property in 2003, then sold again in

2006.   On the sale, the trustees disclosed defects affecting the house which were calculated to have reduced its sale price by some $500,000.   In 2008, the trustees commenced  proceedings  against  the Gedyes  for  breach  of the warranty that  all building work had been in compliance with relevant obligations because the work that had been undertaken in 1997 (and which was alleged to be the cause of the defects) was in fact not in compliance with the Building Act.

[30]     Mr  Gedye applied for defendant’s summary judgment on the basis that the work now criticised had been undertaken more than 10 years before the claim was commenced.   An Associate  Judge  declined  summary  judgment  and  the  Gedyes appealed unsuccessfully to the Court of Appeal.

[31]     As with the analysis in Dustin, the Court of Appeal focused on the long stop limitation introducing a new mode of measuring time from the date of the act or omission giving rise to the claim, rather than the accrual of a cause of action.

[32]     The Court of Appeal accepted that the proceeding arose from building work within the definition of that phrase in the Building Act.  However, the question was whether the act or omission on which the proceeding was based was characterised as the allegedly defective building work, or the giving by the Gedyes of the contractual warranty.   Analysis of what was the appropriate “act or omission on which the proceedings are based” required the meaning of that subsection to be ascertained

from its text and in light of its purpose. The Court of Appeal observed:9

History shows that the impetus for a longstop provision in New Zealand was the problems engendered by a discoverability approach in the context of negligence claims pertaining to building work and building control.  Equally clearly, we think the purpose of s 91(2) was to restrict the litigation of faulty building claims to a maximum ten year period.  The question is, in a case such as this, whether the act or omission giving rise to commencement of the ten year period is the building work itself or a contractual warranty relating to that work.

[33]     The Court of Appeal focused on the act or omission of the defendant on which the proceeding was based as that relevant for determining the applicability of the long stop provision.   In Gedye, the proceeding was based on the voluntary provision by the Gedyes of a warranty in the contract that building work had been completed in compliance with statutory requirements.  Accordingly, a claim arising in that context was not a claim for building work and the Gedyes could not invoke the long stop limitation provision.  The consequence was that their liability was only subject to the conventional limitation periods provided for in the Limitation Act.

[34]     Counsel on the present argument also referred to a fifth, more recent, decision which  adopted  the  approach  in  Dustin,  and  produced  a  consistent  result.    The decision is from August 2012 in Body Corporate 88863 v Pimento Holdings Ltd (the Mainzeal case).10

[35]     In that case, Mainzeal, sued as second defendant, had issued a third party notice against Marsden Decorators Limited, who were a subcontractor of Mainzeal’s that allegedly applied textured coatings to the exterior cladding of the building work in  issue  in  the  proceedings.    Adopting  the  approach  of  Courtney J  in  Dustin, MacKenzie J reached the same conclusion that the basis of Mainzeal’s claim against Marsden was for the latter’s contribution to defects in the building work, and therefore came within the long stop provision (by then in s 393(2) of the Building Act 2004). The Court rejected the suggestion that a relevant distinction might arise where Mainzeal’s claim was on the basis of Marsden owing it a separate duty of care, rather than invoking s 17 of the Law Reform Act 1936 to contend that Marsden was a joint tortfeasor with Mainzeal, in any liability owed to the plaintiff.

[36]     So, predictably, Mr Haig argued that Mr Tedder’s claim for indemnity by the fourth parties was “related to” building work as had been determined in Dustin and the Mainzeal case, rendering the long stop limitation applicable to render the present claim time barred.

[37]     For Mr Tedder, Mr Freeman likened the claim under the alleged employment contract with the contractual claims in issue in Klinac and Gedye that dealt, as their subject matter, with representations as to the competence of building work, but did not relate to actual involvement in having the work completed.   The allegations against the fourth parties are not that they made a less than competent contribution to building work now alleged to have been defective, but rather that they had assumed a contractual obligation to indemnify Mr Tedder in the event that others made a claim against him for alleged defects in the work that he had done.  On that analysis, this was a claim that fell outside the scope of the long stop provision in the Building Act.

[38]     The outcomes in all of these cases can be consistently rationalised on the basis that it is the nature of the contribution to the faulty work that was alleged to be made by the defendant seeking to invoke the long stop limitation that determines whether the Building Act time limitation will apply.   In Dustin and the Mainzeal case, the party seeking to invoke the long stop limitation contributed to the faulty works in either their design or execution.  In Johnson, Mr Watson was liable for his contribution to the allegedly incompetent work on the Johnsons’ house to the extent that it was done, or omitted to be done, within 10 years from the claim being brought against him.

[39]     On the other hand, Mr Klinac did not contribute to the defective work on the property involved in his proceedings, nor did Mr and Mrs Gedye in their case.   In both of those cases, they were removed from the work to the extent that they made contractual representations about it but did not participate in the work.  Accordingly, the connection with the building work requires a contribution to the design or execution of the work, rather than being linked with it merely by contractual provisions representing the competent manner in which the work was done or compliance of the work with statutory standards required for it.

[40]     In the present case, Mr Tedder does not put in issue the competence of any contribution made by the fourth parties to the work on the property that forms the basis  of  the  primary  claim.     Indeed,  Mr Tedder’s  case  would  be  that  any contributions to the construction of the property for which he and/or the fourth parties are responsible were all completed competently.

[41]     Instead, his claim is that a component of his employment contract with the fourth parties was a commitment by the fourth parties to indemnify him against any claims in respect of work he did in the name of their business, and for the costs in dealing with any such claims.  There are bound to be arguments as to the existence and scope of any such indemnity, but the essence of the claim is a contractual entitlement to indemnity that is claimed to exist independently of any job-specific arrangements for work on the particular property.  From Mr Tedder’s perspective, it is a right to indemnity that survived termination of the employment relationship as he alleges it existed, so  that the time limitation on the fourth parties’ potential

exposure to claims on their indemnity rests on conventional limitations applying under the Limitation Act.   The long stop limitation in the Building Act is only indirectly relevant to the fourth parties’ position, in that it prescribes the period in which those claiming to suffer losses as a result of Mr Tedder’s work can bring claims against him.

[42]     On  this  characterisation,  as  Mr Freeman  submitted,  time  on  a  claim  as between Mr Tedder and the fourth parties only runs when he makes a claim for an indemnification that is allegedly covered by his contract of employment, and the fourth parties decline to meet that claim.

[43]     Mr Haig argued that Mr Tedder’s pleading against the fourth parties did not distance them from involvement in the relevant work completely, as Mr Freeman’s argument characterised the position.   He pointed to the allegation in para 12 of Mr Tedder’s statement of claim11 which suggested involvement by the fourth parties in  the  relevant  component  of  the  physical  works  in  terms  of  the  pleading  that Mr Tedder’s work was carried out in accordance with directions from the fourth parties.  However, that allegation is made to bring Mr Tedder’s conduct, which has been the subject of the third party claim against him by WCC, within the scope of

the indemnity he alleges the fourth parties are obliged to provide as his employer. The grounds for Mr Tedder’s claim against the fourth parties do not rely on any allegations  of  their  involvement  in  the  physical  works  that  are  alleged  to  be defective.

[44]     I am satisfied that the basis of the claim does  not depend on  an act  or omission relating to the building work.  Therefore it is more appropriately likened with the nature of alleged contractual liabilities in Klinac and Gedye than it is with the allegations of involvement in the work complained of in Dustin, Johnson and the Mainzeal case.   The grounds for WCC’s claim against third parties does involve allegations of defective building work by each of the parties, and will be governed

by the long stop provision.

11     Cited in [5] above.

[45]     It  seems  that  WCC’s  third  party  notice  was  filed  just  in  time  to  avoid Mr Tedder raising the long stop limitation under the Building Acts.  It is a somewhat arbitrary result of that timing that he will have to reconstruct as best he can the circumstances of his involvement in defending allegations that his work involved relevant defects.

[46]     I am also satisfied that maintaining this distinction between the categories of claims brought against defendants accords with the legislative purpose behind the introduction of the specific long stop provision for the building industry.  From the fourth parties’ perspective, the case against them does not depend on their having to reconstruct the circumstances of their own involvement in the physical works, which the long stop provision is designed to address.  Rather, the issues will be whether any contract  of  employment  between  them  and  Mr Tedder  (or  indeed  contractual arrangements between them for him to provide services as an independent contractor/agent) extended to the provision of an indemnity that covered Mr Tedder’s liability for defects in work he was carrying out at the time of the construction of the plaintiffs’ house.  Would the scope of any such indemnity cover the contingency that arose here, and did the indemnity enure after termination of the contractual relationship between Mr Tedder and the fourth parties?  Although those issues relate to types of work within the definition of building work in the Building Act, they do not require the fourth parties to reconstruct their own physical work, therefore requiring the protection of the long stop limitation provision in recognition of the difficulty of that process.

[47] I am accordingly not satisfied that the long stop provision contained in s 393(2) of the Building Act 2004 applies to the claim as brought by Mr Tedder against the fourth parties.

Does the High Court have jurisdiction?

[48]   Section 161 of the Employment Relations Act 2000 provides that the Employment Relations Authority has exclusive jurisdiction to make determinations “… about employment relationship problems generally, …” and the section provides a  long  list  of  inclusive  examples.    The  examples  start  with  disputes  about  the

interpretation, application or operation of an employment agreement, and matters related to a breach of an employment agreement.  Section 161(1)(r) also provides:

any other action (being an action that is not directly within the jurisdiction of the Court) arising from or related to the employment relationship or related to the interpretation of this Act (other than an action founded on tort):

[49]     Section 5 of the Employment Relations Act defines “employment relationship

problem” in the following terms:

includes a personal grievance, a dispute, and any other problem relating to or arising out of an employment relationship, but does not include any problem with the fixing of new terms and conditions of employment

[50]     “The Court” as referred to in s 161(1)(r) is the Employment Court.

[51]     In arguing for the exclusive jurisdiction of the Authority and therefore the Employment Court to determine Mr Tedder’s claim to an indemnity arising out of the terms of his former employment, Mr Haig invited analogy with the decision in Commissioner of Police v CDW.12     In that case, a Police constable had been the subject of an investigation into an allegation of providing incorrect information and falsely altering a document, which in employment terms was classified as serious

misconduct.   The barrister appointed to conduct the investigation concluded that serious misconduct had  occurred.   However, the barrister’s report initially cited reliance on a process set out in Police regulations that no longer applied.  The Police officer sought judicial review of the Commissioner’s conduct in accepting the findings  of  the  investigation  and  issuing  a  preliminary  letter  of  dismissal.    In response, the Commissioner disputed the jurisdiction of the High Court, contending instead  that  the  dispute  was  an  employment  relationship  problem  within  the exclusive jurisdiction of the Employment Relations Authority and the Employment Court.  That argument was upheld on the basis that the dispute fell squarely within the first example in s 161(1) of the Employment Relations Act, namely a matter relating to the breach of an employment agreement.

[52]     In contrast, there have been a number of decisions of this Court in which it has  decided  that  s 161  of  the  Employment  Relations  Act  does  not  oust  the

12     Commissioner of Police v CDW HC Wellington CIV-2011-485-544, 13 April 2011.

jurisdiction of this Court to hear and determine claims of misuse of confidential information by former employees, after the relevant employment relationship has ended.13

[53]     In Pain Management Systems (NZ) Ltd v McCallum, the earliest of the cases considered, Panckhurst J observed:14

To my mind the core concept which is determinative of the exclusive jurisdiction of the Authority is whether the determination which is required is  indeed  about  an  employment  relationship  problem  …  I  think  it  is important to distinguish between a claim that may have its origins in an employment relationship on the one hand, and a claim the essence of which is related to or arises from the employment relationship of the parties on the other.  Is the issue in a particular claim an employment relationship one, or is the subject-matter of the claim some right or interest which is not directly employment related at all?

[54]     That approach has been adopted in the subsequent decisions.   Mr Freeman argued  that  applying  that  approach  to  the  present  challenge,  the  claim  to  an indemnity is not distinctive of the employment contract, but is a manifestation of the relationship that could, for example, arise as a contractual term between parties who were not in an employer/employee relationship at all.   He instanced principal and agent, and could have added the relationship between an insurer and insured.

[55]     What  is  in  issue  here  is  whether,  many  years  after  any  employment relationship ended, the former employer has an on-going obligation to indemnify the former employee in respect of claims made against the employee for defects alleged in the course of work done as an aspect of the employment.  I am satisfied that the issue is not an “employment relationship problem” in the sense intended by s 161. Conceptually, Mr Tedder might make out the scope of some form of indemnity, even if the Court eventually determines that he was an independent contractor rather than an employee.  The issues that are likely to be contested between Mr Tedder and the fourth  parties  are  clearly  distanced  from  the  types  of  “employment  relationship

problem” that are addressed by s 161 of the Employment Relations Act.

13     For example, Pain Management Systems (NZ) Ltd v McCallum HC Christchurch CP72/01,

14 August 2001, BDM Grange Ltd v Parker [2006] 1 NZLR 353 (HC) and PropertyIQ NZ Ltd v

Vicelich [2012] NZHC 2016.

14 At [22].

[56]     Accordingly, the fourth parties are not entitled to have Mr Tedder’s claim against them struck out.   Nor is Mr Tedder’s claim of a type that s 161 of the Employment Relations Act reserves for the exclusive jurisdiction of the Employment Court.   On the same reasoning, the fourth parties are also not able to make out a claim for defendants’ summary judgment in respect of Mr Tedder’s claim against them.

Costs

[57]     Mr Tedder is entitled to costs on his defence of this application.  I will receive memoranda on costs if the parties cannot agree them.

Dobson J

Solicitors:

Grimshaw & Co, Auckland for plaintiffs

Heaney & Co, Auckland for defendant

DAC Beachcroft, Wellington for first third party

Thomas Dewar Sziranyi Letts, Lower Hutt for third third party

Chapman Tripp, Auckland for sixth third party

Gibson Sheat, Lower Hutt for seventh third party

Macalister Mazengarb, Wellington for fourth parties

Copy to:

Stephen Dean, 21 St Johns Terrace, Tawa