Judge v Dempsey

[2014] NZHC 2864

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-002490 [2014] NZHC 2864

BETWEEN

STUART GRAHAM JUDGE and C O P

TRUSTEES LIMITED as Trustees of the
Challenger Trust
Plaintiffs

AND

PAUL JOHN DEMPSEY, MICHELLE AGANELL DEMPSEY, JONATHAN PAUL STEWART HISLOP and FINBAR NOMINEES LIMITED

First Defendants

AND

MORRISSEY HOMES LIMITED Second Defendant

AND

THE DC CO. LTD (formerly Dominion Constructors (1973) Limited) (in liquidation)

Third Defendant

AND

AUCKLAND COUNCIL Fourth Defendant

AND

ANDREW JAMES MORRISSEY Fifth Defendant

AND

MSC CONSULTING GROUP LIMITED Sixth Defendant

AND

GREGORY CLAYTON WATERHOUSE Second Third Party

AND

CLIVE BROOK PARKER Third Third Party

JUDGE v DEMPSEY [2014] NZHC 2864 [18 November 2014]

CIV-2014-404-000547

BETWEEN  PATRICK ANTHONY EDWARDS and

COLLEEN EDWARDS Plaintiffs

AND  NELSON JOHN PATRICK CULL and

ELIZABETH MEGAN CULL First Defendants

ANDDWELL HEALTHY HOMES LIMITED Second Defendant

ANDANTHONY JOHN WINTER Third Defendant

ANDPAUL JOHN DEMPSEY Fourth Defendant

ANDPAUL JOHN DEMPSEY, MICHELE AVENELL DEMPSEY, JONATHAN PAUL STUART HESLOP and FINBAR NOMINEES LIMITED

Fifth Defendants

ANDGS MASTERS BUILDERS LIMITED Sixth Defendant

ANDSCOTT AARON MASTERS Seventh Defendant

ANDGRANT ROSS MASTERS Eighth Defendant

ANDTHE DC CO. LIMITED Ninth Defendant

ANDMSC CONSULTING GROUP LIMITED Tenth Defendant

ANDSOLID PLASTERERS LIMITED Eleventh Defendant

ANDSTEPHEN ROY MOYLE Twelth Defendant

ANDAUCKLAND COUNCIL Thirteenth Defendant

Hearing:	12 August 2014
Relevant Counsel:	P M Fee and A R Tosh for Applicants (Sixth and Tenth Defendants) G B Lewis and L Cooney for Respondent/-2490 Plaintiff T J G Allan for Respondent/-547 Plaintiff P A Fuscic for Other Defendants (First -2490 Defendants and Fourth and Fifth -547 Defendants)
Judgment:	18 November 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

UPON DEFENDANT'S SUMMARY JUDGMENT APPLICATION

This judgment was delivered by me at 1.00 pm on 18 November 2014 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Introduction

[1]      A defendant seeks summary judgment  against  the plaintiffs in  these two proceedings.

[2]      The two proceedings have been filed by the owners of two neighbouring properties in Challenger Street, St Heliers, Auckland (No 14 and No 14A) which were constructed at the same time.

[3]      I shall call the owners of No 14 “the Judges” and the owners of No 14A “the

Edwards”.

[4]      The Judges and the Edwards (all subsequent purchasers) say that No 14 and No 14A are leaky buildings.   They seek damages from parties involved in their construction, certification and previous sales.

[5]      The applicant, MSC Consulting Group Ltd (MSC), is the sixth defendant in relation to the No 14 proceeding and the 10th  defendant in relation to the No 14A proceeding.

MSC’s grounds of application

[6]      MSC asserts that the plaintiffs’ claims against MSC cannot succeed because:

(a)      MSC  did  not  owe  a  duty  of  care  to  the  plaintiffs  (subsequent purchasers) in relation to the Producer Statement;

(b)      the plaintiffs did not rely on the Producer Statement when purchasing

No 14 and No 14A;

(c)      the issue of the Producer Statement did not cause damage.  There is no causative connection between the issue of the Producer Statement and the plaintiffs’ claimed losses; and

(d)…