Lee v Whangarei District Council - [2016] NZSC 173

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IN THE SUPREME COURT OF NEW ZEALAND

SC 68/2016
[2016] NZSC 173

BETWEEN	OLIVIA WAIYEE LEE Appellant
AND	WHANGAREI DISTRICT COUNCIL Respondent

Hearing:	19 October 2016
Court:	William Young, Glazebrook, Arnold, OʼRegan and McGrath JJ
Counsel:	T J Rainey and J Heard for Appellant A R Galbraith QC and F P Divich for Respondent
Judgment:	22 December 2016

JUDGMENT OF THE COURT

AThe appeal is allowed. The order for summary judgment is set aside.

BCosts of $25,000 plus usual disbursements are awarded to the appellant. We certify for second counsel.

CIf not agreed, costs are to be set in the High Court and the Court of Appeal in the light of this judgment.

____________________________________________________________________

REASONS
(Given by Glazebrook J)

Para
Introduction	[1]
The WHRS Act	[5]
Limitation provisions	[5]
Assessor’s reports	[7]
Adjudication	[13]
Transfer of proceedings	[15]
Withdrawal of claims	[16]
Termination of claims	[19]
Other relevant provisions	[23]
Background	[25]
Issues	[35]
The text of s 37(1)	[36]
Scheme and purpose	[41]
Legislative history	[48]
Significance of ss 54 and 141	[53]
Open-ended liability	[57]
Effect on the Council	[63]
Effect of termination	[64]
Conclusion	[67]
Result and costs	[71]

Introduction

Section 37(1) of the Weathertight Homes Resolution Services Act 2006 (the WHRS Act) provides that the filing of an application by the owner of a dwelling‑house for an assessor’s report under s 32(1) of that Act has the same effect for the purposes of the Limitation Act 1950 (the 1950 Act) as filing proceedings in a court. The issue in this appeal is the extent to which s 37(1) “stops the clock” for limitation purposes.
Ms Lee applied for an assessor’s report on 12 August 2008. Her position is that proceedings she eventually filed in the High Court on 21 May 2014 against the Whangarei District Council are therefore to be treated as having been “brought” on 12 August 2008 for the purposes of s 4(1)(a) of the 1950 Act. This section provides that an action (defined in s 2(1) to mean “any proceeding in a Court of law other than a criminal proceeding”) founded on tort “shall not be brought after the expiration of 6 years from the date on which the cause of action accrued”.
The High Court rejected Ms Lee’s argument on the application of s 37(1).[1] This meant that the court proceedings had to have been filed within six years of the cause of action accruing. The Court held that Ms Lee’s cause of action accrued before 21 May 2008, referring to reports obtained by Ms Lee in February and April 2008 and letters to the builder and the cladding manufacturers in May 2008 showing Ms Lee understood the nature of the problem with the dwelling.[2] It followed that her High Court proceedings were brought out of time and summary judgment was given in favour of the Council.[3] The Court of Appeal upheld the High Court decision.[4] Leave to appeal on 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: [2016] NZSC 173
Decision Date: 22 December 2016

CaseChat Overview and Summary

Olivia Waiyee Lee appealed against the decision of the Court of Appeal to uphold the summary judgment granted to the Whangarei District Council in proceedings Lee brought against the Council in the High Court. The Council argued that Lee's claim was statute barred because it had been brought out of time. The central issue in the appeal was the extent to which section 37(1) of the Weathertight Homes Resolution Services Act 2006 (the WHRS Act) "stops the clock" for limitation purposes. Section 37(1) provides that the filing of an application by the owner of a dwelling-house for an assessor's report under section 32(1) of the WHRS Act has the same effect for the purposes of the Limitation Act 1950 (the 1950 Act) as filing proceedings in a court. Lee's position was that her proceedings in the High Court, filed on 21 May 2014, should be treated as having been "brought" on 12 August 2008 for the purposes of section 4(1)(a) of the 1950 Act, which provides that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. The Court of Appeal rejected Lee's argument. The Supreme Court held that the effect of section 37(1) was to stop the clock for limitation purposes when Lee applied for an assessor's report on 12 August 2008. The appeal was allowed, the order for summary judgment set aside and costs of $25,000 plus usual disbursements awarded to Lee.

Orders