Heaney v Auckland Council - [2018] NZHC 2738

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-002670

[2018] NZHC 2738

BETWEEN
DAVID JONATHAN HEANEY and DENESE ROSEMARY BATES

Plaintiffs

AND

AUCKLAND COUNCIL

Defendant

Continued over

Hearing: 8 October 2018

Appearances:

C Fleming/K Dillon for the Plaintiff (No appearances) S Price/J Wilson for the Defendant

A Gilchrist/K Caisley for the First Third Party
S Lucas/I Shennan for the Third Third Party (no appearances)
M Dennett/G Beresford for the Fourth Third Party (no appearances)

Judgment:

23 October 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
23.10.18 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

HEANEY and BATES v AUCKLAND COUNCIL & ORS [2018] NZHC 2738 [23 October 2018]

AND
BRACKENRIDGE BUILDERS LIMITED

First Third Party

ALLIED EXTERIORS LIMITED

Second Third Party

O’HAGAN BUILDING CONSULTANTS LIMITED

Third Third Party

SCRIBBLE LIMITED

Fourth Third Party

COLIN GREEN

Fifth Third Party

Introduction

[1] This is an application by the first third party, Brackenridge Builders Ltd (Brackenridge), for summary judgment and/or strike out in leaky home proceedings. At issue is the application of the 10 year long-stop limitation period (s 393 of the Building Act 2004) in the context of s 37 of the Weathertight Homes Resolution Services Act 2006 (WHRSA).

[2] Section 37 of the WHRSA provides that for the purposes of any limitation period, the making of an application for an assessor’s report under the WHRSA has the same effect as filing proceedings in a court. That section was considered by the Supreme Court in Lee v Whangarei District Council1. It held that it was not the purpose of s 37(1) to limit the concession created by the WHRSA to proceedings under that Act but it extended to court proceedings. An application for an assessor’s report was not an election to pursue a proceeding under the WHRSA.

[3] In Lee the dispute was between a plaintiff and defendant. The issue here is whether the special regime in s 37 extends to contribution claims between a defendant and a third party, brought pursuant to s 17 of the Law Reform Act 1936. Has Brackenridge demonstrated that the defendant cannot possibly succeed against it because the defendant’s claim for contribution has been brought outside the 10-year limitation period, and despite the fact that the plaintiff applied for an assessor’s report within the 10-year period?

[4] I conclude that the contribution claim by the first defendant is not limitation barred. Section 37 is not restricted to proceedings between a plaintiff and defendant but extends to claims between a defendant and a third party in court proceedings. The application is dismissed.

1 Lee v Whangarei District Council [2016] NZSC 173, [2017] 1 NZLR 401.

Relevant legal principles

[5] Rule 12.2 of the High Court Rules provides that the court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in…

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: [2018] NZHC 2738
Decision Date: 23 October 2018

CaseChat Overview and Summary

In the case of Heaney and Bates v Auckland Council and others, the plaintiffs, David Heaney and Denes Rosemary Bates, brought proceedings against the Auckland Council for building defects in their property. The Council, in turn, sought to bring claims for contribution against various third parties involved in the building work, including Brackenridge Builders Ltd, a first third party. The central issue in this case was whether the special regime provided by Section 37 of the Weathertight Homes Resolution Services Act 2006 (WHRSA) applied to claims for contribution between the defendant and third parties, specifically whether such claims were subject to the 10-year long-stop limitation period under Section 393 of the Building Act 2004.

The court considered whether Section 37 of the WHRSA, which states that the making of an application for an assessor’s report has the same effect as filing proceedings in a court for the purposes of any limitation period, extended to claims for contribution between the defendant and third parties. This interpretation was explored in light of the Supreme Court’s decision in Lee v Whangarei District Council, which held that Section 37 applied to court proceedings and not just to proceedings under the WHRSA. The court also considered the purpose of the legislation, which aimed at promoting speedy, flexible, and cost-effective procedures for the assessment and resolution of claims.

In reaching its decision, the court examined the settled principles of statutory interpretation, focusing on the purpose and policy behind the legislation. The court concluded that the special regime of Section 37 was not restricted to claims between plaintiffs and defendants but extended to contribution claims between a defendant and third parties. The decision was based on the principle that the joinder of additional parties could be beneficial for the resolution of claims and that the potential unfairness to a party being joined outside the normal limitation period was outweighed by the benefit to the homeowner. The court found that Brackenridge had not demonstrated that the Council’s claim for contribution was limitation barred and dismissed the application for summary judgment and/or strike out. Costs were awarded to the Council on a standard basis plus disbursements.

Orders