Johns v Hamilton City Council - [2022] NZHC 1378

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-222

[2022] NZHC 1378

BETWEEN
BRYCE JASON JOHNS

Plaintiff

AND

HAMILTON CITY COUNCIL

First Defendant

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On the papers

Counsel:

B M Easton for Bryce Johns

P A Robertson for Hamilton City Council J J S Shaw for Garth Davey

A B Foster for Elite Coastal Developments Limited, Daniel Gujer and Hamish Stewart
D P Shore and A S-H Hong for Next Level Roofing Limited and Ross Cameron

Judgment:

13 June 2022

JUDGMENT OF HARLAND J

[Recall of judgment]

This judgment was delivered by me on 13 June 2022, at 2:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Counsel/Solicitors:
Grimshaw & co, Auckland Heaney & Partners, Auckland Foster & Milroy, Hamilton McCaw Lewis, Hamilton
Norris Ward McKinnon, Hamilton Copy to: S Bell

JOHNS v HAMILTON CITY COUNCIL (recall of judgment) [2022] NZHC 1378 [13 June 2022]

GARTH WARWICK DAVEY
Second Defendant

EVOLVE ARCHITECTURE LIMITED
First Third Party

JAMES PARROTT
Second Third Party (Discontinued)

MARK and SUSAN BOOTH
Third Third Party (Discontinued)

ELITE COASTAL DEVELOPMENTS LIMITED
Fourth Third Party

DANIEL GUJER
Fifth Third Party

HAMISH JOHN STEWART
Sixth Third Party

WESTGATE FOR ROOFING LIMITED
Seventh Third Party

CONCEPT PLASTERING LIMITED
Eighth Third Party

SIMON BELL
Ninth Third Party

CIV-2020-419-153

BETWEEN HAMILTON CITY COUNCIL
Plaintiff

AND JAMES PARROT
First Defendant (Discontinued)
ELITE COASTAL DEVELOPMENTS LIMITED
Second Defendant
DANIEL GUJER
Third Defendant
HAMISH JOHN STEWART
Fourth Defendant
WESTGATE FOR ROOFIING LIMITED
Fifth Defendant (Discontinued)
CONCEPT PLASTERING LIMITED
Sixth Defendant
SIMON BELL
Seventh Defendant (Discontinued)
NEXT LEVEL ROOFING LIMITED
Eighth Defendant
ROSS CAMERON
Ninth Defendant
GARRY ROSS RICHARDSON
Tenth Defendant
BELL BUILDERS LIMITED
Eleventh Defendant

Introduction

[1] On 7 March 2022, I issued my judgment in respect of this proceeding. An application to recall the judgment has now been made by the first defendant. It is not opposed by any party.

Background

[2] In my judgment of 7 March 2022, I granted leave to the parties to file memoranda regarding costs or in relation to the matters referred to at [360], [388] and
[391] of the judgment.

[3] Various memoranda were filed.1 It was apparent from these memoranda that several issues had arisen in relation to the judgment including that aspects of it are now subject to an appeal by the Council.

[4]Counsel for the Council’s memorandum of 26 April 2022 stated the following:

(a)On 23 November 2020, the Court made an order pursuant to r 10.12 of the High Court Rules, consolidating the proceedings CIV-2019-419- 222 and CIV-2020-419-153.

(b)The Council was found liable to Mr Johns at paragraph [340(a)] of the judgment while Mr Davey was found liable to Mr Johns at [340(b)] of the judgment.

(c)The Council in the original proceeding (CIV-2019-419-222) lodged a cross-claim against Mr Davey (pursuant to the Law Reform Act 1936) on the basis that, if the Council was found liable to Mr Johns, it would be entitled to judgment against Mr Davey towards the…

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: [2022] NZHC 1378
Decision Date: 13 June 2022

CaseChat Overview and Summary

The case of Johns v Hamilton City Council is an appeal concerning the recall of a previous judgment issued by Harland J on 7 March 2022. The plaintiff, Bryce Jason Johns, sued the Hamilton City Council for damages arising from construction defects. Garth Warwick Davey was also sued, as he was involved in the construction project. The legal issues revolved around the consolidation of proceedings, the Council's cross-claim against Davey, and the liability of other defendants. The Council sought to recall the judgment on the basis that it was made under a mistaken belief that the proceedings had not been consolidated, and that the judgment did not adequately address the liability of Davey and the Council for the same defects. The Council also argued that the judgment did not include the liability of other defendants, despite finding them liable for defects.

The Court considered the principles governing the recall of judgments and determined that the application for recall engaged the third category outlined in Horowhenua County v Nash (No 2). The Court found that the proposed amendments would clarify the findings already made earlier in the judgment and sought to include them in the summary conclusions in relation to liability. The Court granted the application for recall, inserting the paragraphs numbered [340(c)], [340(d)] and [391A]–[391D] as outlined in paragraph [16]. The Court noted that no party opposed the application and that what was sought did not extend to a challenge of any substantive findings of fact and law in the judgment. The proposed amendments in the main related to clarifying the findings already made earlier in the judgment and sought to include them in the summary conclusions in relation to liability. These amendments were arguably not necessary or could be dealt with under the slip rule, but given the more fundamental issue to do with the consolidation of the proceedings, it was appropriate that they be dealt with in this judgment at the same time.

Orders