Hamilton City Council v Tompkins - [2013] NZHC 785

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6529 [2013] NZHC 785

IN THE MATTER OF an appeal from a determination under the Weathertight Homes Resolution Services Act 2006

BETWEEN HAMILTON CITY COUNCIL Appellant

ANDIRENE FAY TOMPKINS, DOROTHY LOVELL & ISLA MAY TRAPSKI AS TRUSTEES OF ICE TRUST & SWEETBIX LIMITED
First Respondents

ANDWAIKATO BUILDING REPORTS LIMITED
Second Respondent

ANDIAN RUNCIMAN Third Respondent

Hearing: 11 April 2013

Appearances: P A Robertson for the Appellant
T J Wood for the First Respondent (I F Tompkins)
I Runciman, Third Respondent in person and for Second Respondent

Judgment: 11 April 2013

ORAL JUDGMENT OF PRIESTLEY J

Counsel:
P A Robertson, Heaney & Co, Auckland. Email: par@heaneyco.com
T J Wood, Jones Fee, Auckland. Email: Tanya.wood@jonesfee.com

Copy to:
I Runciman Email: ian@waikatobuildingreports.co.nz;

HAMILTON CITY COUNCIL V TOMPKINS & ORS HC AK CIV-2012-404-6529 [11 April 2013]

Amendment

[1] For some reason the first named first respondent is recorded as Irene Fay Thompson. It is clear from the documents that her last name is “Tompkins”. Her name is thus wrongly recorded both on this Court’s file and also on the fronting sheet of the decision under appeal. An amendment is made accordingly.

The appeal

[2] On 3 October 2012 an adjudicator with the Weathertight Homes Tribunal (the Tribunal) made a procedural order removing the second and third respondents as parties to the adjudication.

[3] This appeal challenges that adjudication made by Mr P R Cogswell, a member of the Tribunal.

[4] The appeal is lodged under fairly broad powers contained in s 93 of the Weathertight Homes Resolution Services Act 2006 (the Act). Because the claim currently before the Tribunal exceeds $200,000 the High Court is the appropriate appellate forum.

[5] I note that in terms of s 95 of the Act this Court has broad powers on an appeal, including (s 96(1)(a)), the traditional powers of confirming, modifying, or reversing the Tribunal’s determination.

The parties

[6] A trust, of which Ms Tompkins is one of three trustees (Ice Trust), owns the relevant property, 180 Thomas Road, Rototuna, Hamilton, as a tenant in common in an equal share. The co-owner (also a tenant in common in an equal share) is Sweetbix Limited which is a company operated by Ms Tompkins’ daughter Mrs E Hughes.

[7] Mr Runciman and his company Waikato Building Reports Ltd (Waikato) provided Ms Tompkins and Mrs Hughes with two building reports dated 5 October and 9 October 2009 respectively.

[8] Exactly who the contracting parties were; what the terms of engagement were; what the agreed scope of the two building reports was; the extent on which they were relied; and importantly whether the solicitor acting for Ms Tompkins and Mrs Hughes on the purchase ever sighted these reports, are problematic, highly relevant, and matters of evidence ultimately before the Tribunal. I need make no further comment in that regard.

[9] Mr Runciman and Waikato currently have no legal representation. Although Ms Wood, acting for Ms Tompkins, did this Court the initial courtesy…

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 785
Decision Date: 11 April 2013

CaseChat Overview and Summary

Hamilton City Council sought to appeal a decision by the Weathertight Homes Tribunal to remove the second and third respondents from a claim for defective building works. The respondents, Waikato Building Reports Ltd and Ian Runciman, were engaged to provide building inspection reports on the property before it was purchased by Irene Fay Tompkins and Dorothy Lovell. Tompkins, who was also a trustee of the Ice Trust, sought to claim for defective building works against the respondents. The appeal challenged the procedural order made by the Tribunal that removed the second and third respondents from the claim.

The key legal issue was whether the Tribunal correctly exercised its power under s 112 of the Weathertight Homes Resolution Services Act 2006 to remove the second and third respondents from the claim. The appeal submitted that the Tribunal failed to properly consider the position of the co-purchaser, Dorothy Lovell, who would not have proceeded with the transaction if the building inspection reports had indicated weathertightness problems.

The court found that the Tribunal erred in removing the second and third respondents from the claim. The court found that the Tribunal failed to properly consider the position of Dorothy Lovell, who would not have proceeded with the purchase if the inspection reports had indicated defects. The court also found that the Tribunal did not properly consider the loss of chance available to Tompkins if the inspection reports had indicated defects. The court concluded that the removal of the second and third respondents was premature and in error.

The appeal was allowed and the Tribunal's decision to remove the second and third respondents was reversed. The court declined to award costs against the third respondent, Ian Runciman, as he appeared in court as a matter of courtesy and did not significantly obstruct the appeal.

Orders