Kelly v Lasque Construction Limited - [2015] NZHC 785

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-007500 [2015] NZHC 785

BETWEEN
ROBIN JOHN LEARY KELLY,

PATRICIA ANN KELLY AND LINDA GLASSWELL

Plaintiffs

AND

LASQUE CONSTRUCTION LIMITED formerly trading as SIGNATURE HOMES First Defendant

SIGNATURE RESIDENTIAL LIMITED

trading as SIGNATURE HOMES Second Defendant

SIGNATURE HOMES LIMITED Third Defendant

STEWART CRAIG WILSON Fourth Defendant

Hearing: (on the papers)

Judgment:

21 April 2015

JUDGMENT OF VENNING J

on defendants' application for further and better particulars

This judgment was delivered by me on 21 April 2015 at 4.30 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Blackwells, Auckland
Wiltshire Stone, Auckland

Copy to: A Gilchrist, Auckland
C Meechan QC, Auckland

KELLY v LASQUE CONSTRUCTION LIMITED formerly trading as SIGNATURE HOMES [2015] NZHC 785 [21 April 2015]

Introduction

[1] This case has a substantive fixture commencing 25 May 2015 (five days).

The defendants seek further particulars of the plaintiffs’ claim.

[2] The plaintiffs plead inter alia, that at material times, the fourth defendant, Mr Wilson, was a director of the second and third defendants under the extended definition of “director” in s 126 of the Companies Act 1993 (and was an actual appointed director of the second defendant from 1 December 2011).

[3] The defendants consider that the plaintiffs have not provided sufficient particulars to support that pleading and other, related, claims as to the role the fourth defendant played.

[4] The case was initially allocated a fixture in March 2014, which was vacated. Then on 9 October 2014 Associate Judge Christiansen allocated the fixture for 25
May 2015. The Registry confirmed that date to counsel on 15 October 2014. The close of pleadings date was 26 February 2015.

[5] The plaintiffs filed a third amended statement of claim on 13 February 2015. Counsel for the defendants, Ms Meechan QC, raised a number of concerns regarding the amended claim. On 26 February 2015 the Court directed that the defendants were to have leave to serve a notice requesting particulars by 4 March 2015 and directions were made for response and, if necessary, for the application to be heard in advance of trial to ensure the trial date was maintained. In granting leave to the defendants to issue the notice, the Court noted that the pleading at [2] above had been pleaded earlier (in October 2013) and was not new. However, the particulars provided were new. Subsequently, as Ms Meechan was unavailable on ? the matter has proceeded by way of an exchange of submissions with this decision issuing on the papers.

The principles

[6] The application is made under r 5.21. As the Court of Appeal confirmed in

Price Waterhouse v Fortex Group Ltd, particulars and pleadings are intended to:1

[s]upply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.

[7] Pleading is not an area for mechanical approaches or pedantry.2 The essential point…

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 Kelly v Lasque Construction Limited

Details

AGLC: Kelly v Lasque Construction Limited [2015] NZHC 785
Case: [2015] NZHC 785
Decision Date: 21 April 2015

CaseChat Overview and Summary

The case of Kelly v Lasque Construction Limited involves a legal dispute where the plaintiffs, Robin John Leary Kelly, Patricia Ann Kelly, and Linda Glasswell, are suing multiple defendants, including Lasque Construction Limited, Signature Residential Limited, Signature Homes Limited, and Stewart Craig Wilson. The plaintiffs are seeking damages for alleged misleading and deceptive conduct related to the construction of a property, specifically concerning the issuance of a Code Compliance Certificate. The defendants have applied for further and better particulars of the plaintiffs' claims, arguing that the existing particulars are insufficient to support their allegations.

The court was required to decide whether the plaintiffs needed to provide more detailed particulars to support their claims, particularly those related to the role and authority of Stewart Craig Wilson as a director or agent of the second and third defendants. The court needed to assess whether the existing particulars were adequate for the defendants to prepare a defence and whether the plaintiffs were required to provide further information under the principles of pleadings and particulars.

In its judgment, the court found that while some of the particulars requested by the defendants could have been sought earlier, the plaintiffs were not required to provide further particulars on certain aspects of their claims. The court clarified that the plaintiffs' reliance on section 126(1)(a) of the Companies Act 1993, which defines a de facto director, was sufficient to inform the defendants of the case they had to meet. However, the court did require the plaintiffs to provide specific details regarding certain allegations, such as the particulars of meetings, emails, and other communications that support the claim that Wilson was held out as an agent or director of the second and third defendants. The court emphasized that while the adequacy of the particulars to support the plaintiffs' case would be a matter for trial, the defendants needed to be sufficiently informed of the basis of the claims against them.

The court ordered the plaintiffs to provide the specified particulars by 28 April 2015 and maintained the existing timetable for the trial. The costs of the application were to lie where they fell. The court highlighted that some of the requests for particulars could have been made earlier and should have been resolved between counsel.

Orders