Grey District Council v Blain - [2013] NZHC 976

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2011-418-000060

CIV-2011-418-000123 [2013] NZHC 976

BETWEEN GREY DISTRICT COUNCIL Plaintiff

ANDANDREW SCOTT BLAIN First Defendant

ANDKEVIN O'CONNOR & ASSOCIATES LIMITED
Second Defendant

ANDASC ARCHITECTS LIMITED [DISCONTINUED]
Third Defendant

ANDCARTER HOLT HARVEY LIMITED Fourth Defendant

ANDLHT DESIGN LIMITED Fifth Defendant

ANDEVAN JONES CONSTRUCTION LIMITED
Third Party

Hearing: 26 April 2013
(By way of telephone conference)

Appearances: No appearance for the Plaintiff
S Lester for the First and Second Defendants
K Simcock for the Fourth Defendant
D J Macrae for the Fifth Defendant
G M Brodie for the Third Party

Judgment: 6 May 2013

JUDGMENT OF FOGARTY J

Solicitors:
Buddle Findlay, PO Box 322, Christchurch 8140
Duncan Cotterill, PO Box 5, Christchurch – s.lester@duncancotterill.com
Lee Salmon Long, Auckland – kate.simcock@lsl.co.nz
Morgan Croakle, Auckland – dmacrae@morgancroakle.co.nz
G M Brodie, Christchurch – geoff.brodie@endeavourchambers.co.nz

GREY DISTRICT COUNCIL V BLAIN and Ors HC GRY CIV-2011-418-000060 [6 May 2013]

[1] The plaintiff Council contracted with Evan Jones Construction for the construction of an aquatic centre. It retained the first and second defendant as consultant engineers. It is suing the first and second defendants in tort.

[2] The fourth defendant was a supplier of certain product. The Council is suing the fourth defendant in tort for negligence. The Council is suing the fifth defendant in contract and in tort. LHT Design Limited (LHT) was retained for the design and administration of the construction, and to deal with regulatory compliance.

[3] The first, second, fourth and fifth defendants have all joined the builder, Evan Jones Construction Limited (EJCL), as a third party. They allege that EJCL owed the Council a duty of care, and so would be liable as a concurrent tortfeasor. EJCL has applied for orders setting aside the third party notice, and granting summary judgment in its favour in respect of them. The application was heard by Associate Judge Matthews, who found in favour or EJCL, setting aside the notices and awarding it costs.

[4] Applications have been lodged to review this decision by the first, second, fourth and fifth defendants. (The proceedings by the third defendant had been discontinued.)

[5] The Court has received a consent memorandum advising that the parties have conferred, and agree that the review applications would be more appropriately dealt with by the Court of Appeal. They apply to have the review hearing transferred to the Court of Appeal under s 64 of the Judicature Act 1908.

[6] They argue that such a transfer is justified on the basis that the review raises an issue of considerable public importance:

(1)Whether a builder engaged by a landowner to undertake a commercial construction project on the terms set out in the conditions of contract for Building and Civil Engineering Construction NZS 3910:2003 can arguably be a concurrent duty in tort to the landowner to exercise reasonable care skill and diligence in carrying out the construction.

But this is a question of law that has not been decided previously, and will have widespread implications

(2) That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 976
Decision Date: 6 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Greymouth Registry, the plaintiff, Grey District Council, brought an action against several defendants in both tort and contract, relating to the construction of an aquatic centre. The defendants in turn sought to join the builder, Evan Jones Construction Limited (EJCL), as a third party, alleging that EJCL owed a duty of care to the Council. EJCL applied for orders setting aside the third party notice and granting summary judgment in its favour, which was granted by an Associate Judge. The defendants subsequently lodged applications to review this decision. The Court received a consent memorandum in which the parties agreed that the review applications would be more appropriately dealt with by the Court of Appeal.

The legal issues before the Court were whether section 64 of the Judicature Act could be used to transfer the review applications to the Court of Appeal, and if so, whether this was a clear case where it should be used. The Court noted that there was no doubt that interlocutory applications could be moved directly to the Court of Appeal, but had to consider whether or not the review of an Associate Judge’s decision could be conducted by the Court of Appeal. The Court held that the review could be transferred to the Court of Appeal, and that these circumstances were exceptional. The Court granted the application for transfer, with some diffidence, and reserved costs.

The Court's reasoning was based on the need to avoid a needless expense to the parties of having another hearing in the High Court, as the issue of whether there is a concurrent duty in tort would have to be resolved by the Court of Appeal or Supreme Court. The Court also noted that section 64 of the Judicature Act is intended to be used sparingly, and that transferring the review applications to the Court of Appeal would not convert it to an appeal, rather, the Judges would be sitting as a full Court of the High Court. The Court held that these circumstances were exceptional, and that it was desirable that the review be heard in the first instance by a High Court Judge rather than an Associate Judge. The Court granted the application for transfer, with some diffidence, and reserved costs.

In conclusion, the Court granted the application for transfer of the review applications to the Court of Appeal, and reserved costs. The Court's decision was based on the need to avoid a needless expense to the parties of having another hearing in the High Court, and the exceptional circumstances of the case. The Court held that transferring the review applications to the Court of Appeal would not convert it to an appeal, rather, the Judges would be sitting as a full Court of the High Court. The Court also noted that section 64 of the Judicature Act is intended to be used sparingly, and that these circumstances were exceptional.

Orders