Lee v Auckland Council - [2015] NZHC 1196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-556 [2015] NZHC 1196

BETWEEN
BU-RYE LEE AND JEOM-YOUL LEE

Appellants

AND

AUCKLAND COUNCIL First Respondent

GOODLAND INVESTMENTS LIMITED Second Respondent

LAI FOOK CHOY Third Respondent

Hearing: 26 May 2015

Appearances:

GR Grant for Appellants
SB Knight and SB Fellows for First Respondent
No appearance for Second Respondent
No appearance by or for Third Respondent

Judgment:

29 May 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 29 May 2015 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………………………

Solicitors:
Rainey Law, Auckland
Simpson Grierson, Auckland

LEE v AUCKLAND COUNCIL & ORS [2015] NZHC 1196

Introduction

[1] The appellants, Mr and Mrs Lee, appeal a procedural decision of the Weathertight Homes Tribunal made on 16 February 2015.1 The Tribunal ordered that the first respondent, Auckland Council, should be removed from the proceedings pursuant to s 112 of the Weathertight Homes Resolution Services Act 2006 (“the Act”).

[2] Auckland Council supports the Tribunal’s decision. The developer, Goodland Investments Limited (“GIL”) abides the decision of the Court. The third respondent, Mr Choy, was added to the proceedings by GIL. It is unclear whether he has yet been served. If he has been served, he has taken no steps to date and he did not appear.

Background

[3] Mr and Mrs Lee own a residential property in Albany Heights. Their house leaks, and in September 2014 they commenced adjudication proceedings in the Weathertight Homes Tribunal against Auckland Council and GIL, seeking to recover the estimated cost of repairing the house - $344,228 – plus consequential losses and general damages.

[4] The property was initially owned by GIL. On 24 December 2003 it was transferred by GIL to a Ms Ratcliffe. On the same day Ms Ratcliffe transferred the property to Jung Jin Kim, and, also on the same day, he transferred the property to Jong Ho Choi and Hyo Ja Woun. A little under a year later, on 15 December 2004, the property was transferred to Mr and Mrs Lee. The property was sold to Mr and Mrs Lee by private treaty. They knew the vendors.

[5] Auckland Council’s involvement in the construction of the house and the key events and dates are summarised as follows:

1 Lee v Auckland Council, TRI-2014-100-026, 16 February 2015.

DATE
EVENT

21 March 2002

GIL applied to Auckland Council for building consent to build the house on the property.

28 March 2002

Auckland Council issued building consent. The cladding specified was 21mm solid plaster on battens.

May 2002

Building work started.

18 October 2002

Auckland Council carried out a pre-line inspection. The house failed the inspection for lack of insulation. The inspector noted that the exterior cladding had been changed from that shown on the approved building plans. He issued field memorandum

41222 which recorded that the owner was to provide amended drawings for the changed cladding for approval by Auckland Council.

25 October 2002

GIL lodged amended…

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: [2015] NZHC 1196
Decision Date: 29 May 2015

CaseChat Overview and Summary

The appeal in Lee v Auckland Council was brought by Mr and Mrs Lee against the Weathertight Homes Tribunal's decision to remove Auckland Council as a party from their adjudication proceedings. The Lees sought to recover the estimated cost of repairing their residential property in Albany Heights, which they claimed was leaking. The property was initially owned by Goodland Investments Limited (GIL), who had obtained building consent from Auckland Council. The Lees alleged that Auckland Council was negligent in its building control functions and failed to stop the cladding work until an amended application for consent had been made and approved. The Tribunal dismissed the Lees' claims against Auckland Council and removed it from the proceedings. The Lees appealed to the High Court, arguing that the Tribunal erred in its decision. The court found that the Tribunal had erred in its conclusions that Auckland Council was not negligent, that there was no causal link between the Council's actions and the Lees' loss, and that the Lees' failure to obtain a Land Information Memorandum might be the real and effective cause of their loss. The court held that the Lees had a tenable cause of action against Auckland Council and that the strength or weakness of their claim, and whether Auckland Council's actions or omissions were causative of their loss, could only be determined following a full hearing. The appeal was allowed, and Auckland Council was reinstated as the first respondent in the proceedings before the Weathertight Homes Tribunal. The Lees were entitled to their costs on a 2B basis against Auckland Council, together with their reasonable disbursements.

Orders