Lee v Whangarei District Council - [2018] NZHC 899

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2014-488-94 [2018] NZHC 899

UNDER the Judicature Act 1908, the Building Act 1991 and the Building Act 2004

BETWEEN

WAI-YEE LEE (also known as OLIVIA LEE)

Plaintiff

AND

WHANGAREI DISTRICT COUNCIL

First Defendant

ROBIN FREDERICK LITTLEJOHN
First Third Party

CCS MANUFACTURING AND INSTALLATIONS LIMITED

Second Third Party

ALTHERM ALUMINIUM (NORTHLAND) LIMITED

Third Third Party

NORTHLAND WATERPROOFING SOLUTIONS LIMITED

Fourth Third Party

LAURIE WHITELAW

Fifth Third Party

Hearing: 30 April 2018 at 2:15pm

Appearances:

T J Rainey for the Plaintiff

F Divich and C Harpur for the Defendant

J Skinner and K Lee for the Second Third Party A Holgate for the Third Third Party

No appearances for the First, Fourth and Fifth Third Parties

Judgment:

30 April 2018

WAI-YEE LEE (also known as OLIVIA LEE) v WHANGAREI DISTRICT COUNCIL [2018] NZHC 899 [30
April 2018]

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

[1] CCS Manufacturing and Installations Ltd, the second third party, applies for summary judgment and strike-out of the defendant’s statement of claim against it. The Whangarei District Council seeks contribution from CCS as a concurrent tortfeasor under s 17(1)(c) of the Law Reform Act 1936. CCS says that the District Council cannot claim contribution because CCS has already been found not liable in earlier proceedings that Ms Lee brought against it.

[2] This is another decision in Ms Lee’s leaky building litigation for her house at 183 Sandford Road, Raukaka. The house was built between 2006 and early 2008. The Whangarei District Council issued a building consent and made inspections during construction but it did not issue a code compliance certificate under the Building Act 2004. CCS, which used to be called ‘Composite Cladding and Signage Manufacture Installations Ltd’, was engaged as a contractor to manufacture and install cladding using aluminium supplied by Ms Lee.

[3] It is helpful to understand certain aspects of the cladding. There are two elements. There is “pre-cladding”, which is to protect the building from water ingress. Outside that there is aluminium cladding, which is a rain screen and is meant to be a moisture barrier between the pre-cladding and the aluminium cladding. CCS was responsible for the manufacture and installation of the aluminium cladding. It was not responsible for the pre-cladding.

[4] In early 2008, Ms Lee was aware that there were defects in the house. She has spent considerable time and effort since then litigating over the defects. That has included an adjudication under the Construction Contracts Act 2002, an arbitration, an attempted proceeding in the Weathertight Homes Tribunal, proceedings in the District Court as well as this case. In this proceeding, the District Council is the only defendant. It has joined third parties. CCS is the second third party. Mr R Littlejohn, the first third party, is a director of the company which supplied labour under contract to Ms Lee. Ms Lee succeeded in an arbitration against his company.

Altherm…

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: [2018] NZHC 899
Decision Date: 30 April 2018

CaseChat Overview and Summary

The case of Lee v Whangarei District Council involved a dispute between Wai-Yee Lee and the Whangarei District Council over defects in a house at 183 Sandford Road, Raukaka. The house was constructed between 2006 and early 2008. The Whangarei District Council issued a building consent and conducted inspections during construction, but it did not issue a code compliance certificate under the Building Act 2004. CCS Manufacturing and Installations Limited, the second third party, applied for summary judgment and strike-out of the defendant's statement of claim against it. The Whangarei District Council sought contribution from CCS as a concurrent tortfeasor under s 17(1)(c) of the Law Reform Act 1936. CCS argued that the District Council could not claim contribution because CCS had already been found not liable in earlier proceedings that Ms Lee brought against it.

The court examined the legal issues, including the interpretation of s 17(1)(c) of the Law Reform Act 1936, which deals with contribution between joint and several tortfeasors. The court found that the District Council could not claim contribution from CCS because CCS had already been found not liable for the same damage in earlier proceedings. The court applied the interpretation of the relevant statute from George Wimpey & Co Ltd v British Overseas Airways Corporation, which held that a party who has been found not liable cannot be liable for contribution.

In conclusion, the court granted the summary judgment application and struck out the Council's third party claim against CCS. The court declined to give any ruling on issues between Ms Lee and the District Council, as the matter was to be determined at trial. The court also left the matter of costs to be conferred upon by the parties.

Orders