Heaven v Webster Malcolm & Kilpatrick HC Auckland Civ 2004-404-2826

[2005] NZHC 1636

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-2826

BETWEENJOHN CHARLES HEAVEN AND MARY LOUISE HEAVEN

Plaintiffs

AND  WEBSTER MALCOLM & KILPATRICK

Defendant

Hearing:         7 February 2005 Appearances: T Darby for plaintiffs

A Sherlock for defendant Judgment:    7 February 2005 at 15:30

JUDGMENT OF ASSOCIATE JUDGE FAIRE

[on application for recall of judgment]

Solicitors:           T Darby, PO Box 90 959, Auckland for plaintiffs

Hesketh Henry, Private Bag 92 093, Auckland for defendant

Heaven & Anor V Webster Malcolm & Kilpatrick HC AK CIV 2004-404-2826 7 February 2005

[1]    The plaintiffs filed an application to recall my judgment dated 3 February 2005. It is common ground that that judgment has not been sealed.

[2]    The reason advanced for the application for recall is, in particular, that counsel had not referred me to relevant authority on the appropriate test to be applied in respect of limitation defences and, in particular, in relation to causes of action in tort which do not involve latent building defects with personal injury claims.

[3]    Mr Darby referred me to a judgment Associate Judge Christiansen in Guards Fisheries (Nelson) Ltd & Anor v The Partners of Hunter Ralfe Solicitors of Nelson & Anor HC NEL Civ 2003-442-255 29 October 2004.

[4]    His Honour deals with the issue of whether reasonable discoverability could be the appropriate test in tort at [58], [59] and [60] of his judgment. He records counsel for the defendant’s submissions as follows:

It is Mr Hunt’s submission that the current state of the law in New Zealand is that time begins to run when damage is sustained, regardless of whether the plaintiff was aware of the fact, except in the limited exceptions of latent defects in houses, and bodily injury.

[5]At [60] His Honour said:

Mr Hunt is probably correct with that submission.

He refers to the works of leading academic commentators and concludes, however, that it would be unsafe for him to express a view either way. For that reason he declined to strike the case out.

[6]    The question was also recently considered by Master Lang, as he then was, in Murray & Ors v Morel & Co Ltd & Ors HC AKL Civ 2003-404-4897 8 April 2004. He refers to the relevant authority at [95], [96], [97], [98], [99] and [100] of his judgment. He reached the conclusion that no further extension of the law was justified outside legislative change or from an authoritative decision of the Court of Appeal. For reasons which are expressed in my judgment, I agree with his conclusion.

[7]    Mr Sherlock invited me to find, irrespective of the argument relating to reasonable discoverability, that the plaintiffs’ claims could not succeed because of the evidential foundation which I have summarised in [81] of my judgment. In my view, it would be wrong to go through the judgment and re-analyse it based on a recall basis unless, of course, an established basis for recall was made out. The parties have other rights if they wish to pursue the matter further.

Conclusion

[8]    The conclusion I reach is that there is no proper foundation for the recall of my judgment and accordingly, I decline the application for recall filed on the plaintiffs’ behalf.

Costs

[9]    If any party seeks costs in relation to the application then the matter shall be covered by the direction on costs which I have given in [86] of my judgment of 3 February 2005.

JA Faire Associate Judge