Hermann v Martin - [2020] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000896

[2020] NZHC 688

UNDER the Weathertight Homes Resolution Services Act 2006

IN THE MATTER

of an appeal from a decision of the Weathertight Homes Tribunal

BETWEEN

DAVID THOMAS HERMANN

First Appellant

HERMANN ENTERPRISES LIMITED
Second Appellant

AND

JULIE MARTIN, BELINDA MARTIN and NOEL CAVE

First Respondents

GRAEME JOHN EVANS
Second Respondent

Respondents continued over

Hearing: 18 March 2020

Appearances:

C E Lane and N W H Hawtin for First and Second Appellants D J Barr and M G Bolwell for Seventh Respondents

No other appearance for or by other Respondents

Judgment:

3 April 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 3 April 2020 at 3.30pm Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:…………………………

HERMANN v MARTIN [2020] NZHC 688 [3 April 2020]

BRUCE POVELL
Third Respondent

RICHARD PALMER
Fourth Respondent

MARK WILLIAM TERRILL
Fifth Respondent

MWT MASONRY LIMITED
Sixth Respondent

FLETCHER CONCRETE AND INFRASTRUCTURE LIMITED
Seventh Respondent

NAGEL CONSULTANTS LIMITED
Eighth Respondent

Solicitors/counsel: Grimshaw & Co, Auckland
Simpson Grierson, Wellington

Introduction

[1] The appellants, David Hermann and his company, Hermann Enterprises Ltd (jointly Hermanns), appeal a decision of the Weathertight Homes Tribunal (the Tribunal) made in procedural order 12 delivered on 12 April 2019.1

[2] Hermanns are defendants in a claim bought under the Weathertight Homes Resolution Services Act 2006 (the Act). They sought to join additional parties - including the seventh respondent, Fletcher Concrete and Infrastructure Ltd (Firth) and the eighth respondent, Nagel Consultants Ltd (Nagel) - to the claim. The Tribunal joined some parties to the claim but declined to join others, including Firth and Nagel.

[3] Hermanns appeal the Tribunal’s refusal to join Firth and Nagel to the claim. They do not appeal the other orders made by the Tribunal. Firth opposes the appeal. Nagel has been served but has taken no steps.

Background facts

[4] The appeal arises out of a building defects claim brought by the first respondents, Ms Julie and Ms Belinda Martin and Mr Noel Cave (jointly the claimants), against various persons and entities they say were involved in the construction of their new home in New Plymouth between 2004 and 2005. They say that the house was constructed with defects, that it leaked, that damage resulted and that the house required remedial work to put it right, including recladding. In particular they say that there was:

(a)inadequate detailing to the joinery/cladding junctions;

(b)inadequate detailing to the exterior concrete block and plaster paint systems;

(c)inadequate installation of structural elements including inadequate grout filling of exterior block walls;

1 Martin v Hermann (Procedural Order 12) [2019] NZWHT Auckland.

(d)poor installation of exterior plaster and paint systems; and

(e)a lack of detailing in line with the approved building consent documentation.

[5] The claimants applied to the Ministry of Business Innovation and Employment (MBIE) in January 2013 and an initial Assessment Eligibility Report was completed in February…

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.

Continue reading Hermann v Martin

Details

AGLC: Hermann v Martin [2020] NZHC 688
Case: [2020] NZHC 688
Decision Date: 3 April 2020

CaseChat Overview and Summary

In Hermann v Martin, the appellants, David Hermann and Hermann Enterprises Ltd, sought to appeal a decision of the Weathertight Homes Tribunal which refused to join two additional parties to a claim brought under the Weathertight Homes Resolution Services Act 2006. The claimants, Julie and Belinda Martin and Mr Noel Cave, had brought a claim against the appellants and others for building defects in their home. The appellants sought to join Fletcher Concrete and Infrastructure Ltd (Firth) and Nagel Consultants Ltd (Nagel) to the claim on the basis that they were also liable for the defects. The Tribunal declined to join Firth and Nagel to the claim. The appellants appealed the Tribunal’s decision. The court held that the Tribunal had applied an incorrect test in determining whether to join additional parties to the claim. The test requires tenable evidence of a proposed party’s breach of duty and a causative link to the construction of a claimant’s house, not “sufficiently compelling evidence”. The court found that there was tenable evidence that could establish that Firth and Nagel were liable for the defects and that the Tribunal had erred in refusing to join them to the claim. The appeal was allowed and both Firth and Nagel were directed to be joined as defendants to the claim.

Orders