Lee v Whangarei District Council - [2014] NZHC 2989

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-94 [2014] NZHC 2989

IN THE MATTER OF
the Judicature Act 1908,

the Building Act 1991 and the Building Act 2004

BETWEEN

OLIVIA WAI YEE LEE Plaintiff

AND

WHANGAREI DISTRICT COUNCIL Defendant

Hearing: 24 November 2014

Appearances:

O W Y Lee, plaintiff in person, with McKenzie friend, Ms T Connor

F P Divich and H E Waldron for Defendant

Judgment:

24 November 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Heaney & Partners, Auckland, for Defendant
Copy for:
Olivia W Y Lee, Plaintiff

LEE v WHANGAREI DISTRICT COUNCIL [2014] NZHC 2989 [24 November 2014]

[1] In this leaky building claim, the Whangarei District Council has applied for security for costs against Olivia Lee, the plaintiff. There is no real dispute that there is reason to believe that if she is unsuccessful, Ms Lee will not be able to pay the council’s costs. This decision turns on the balancing exercise, in which the court must weigh the competing considerations of the plaintiff’s access to justice and the defendant’s desire to be protected against a barren order for costs if it is successful.

[2] Before I deal with the application itself, I need to say something about the procedure adopted this afternoon.

[3] Ms Lee is Chinese. She migrated to New Zealand. While she has a good command of the English language, she does have difficulty expressing herself in public. Ms Connor who attended court today is a McKenzie friend. Normally, the role of a McKenzie friend is to sit with the party and give quiet assistance. On this occasion, however, Ms Lee asked the court for permission for Ms Connor to address me. I allowed that. I regard that as exceptional but I have to say that that has been useful for the hearing today. In effect, Ms Connor acted as an interpreter for Ms Lee and was able to convey what Ms Lee would have said if she had been able to express herself better in English. Ms Connor addressed me appropriately on the facts and also drew my attention to relevant principles of law. I have benefited from Ms Connor’s assistance.

[4] As I say, I regard this step as exceptional, but I have allowed it in the court’s

inherent jurisdiction. It was appropriate in the circumstances of the case.

Background

[5] Ms Lee had a house built on her property at 183 Sandford Road, Ruakaka, Whangarei. She applied for a building consent in August 2006. The consent was granted on 26 October 2006, after the council had requisitioned for further information on a number of aspects. Building work started in January 2007. During construction, the council carried out a number of inspections. Some of those inspections are in issue in this proceeding. Of particular relevance are field advice notes issued for inspections on 18 June 2007 and 26 June 2007. Ms Lee moved into

the house in December 2007. The council carried out a final inspection…

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: [2014] NZHC 2989
Decision Date: 24 November 2014

CaseChat Overview and Summary

The Whangarei District Council applied for security for costs against Olivia Lee, the plaintiff, in a leaky building claim. The court had to decide whether there was a reason to believe that if Ms Lee was unsuccessful, she would not be able to pay the council’s costs. The court had to balance the plaintiff’s access to justice against the defendant’s desire to be protected against a barren order for costs if it was successful. The court considered the strength of Ms Lee’s case, her impecuniosity, and the role she played in the construction of the house. The court found that while Ms Lee’s case had some weaknesses, it was not frivolous and she had an arguable case against the council. The court also found that the council’s interest in being protected against a barren costs order was not strong enough to override Ms Lee’s right of access to the court. The court declined to order security for costs at that stage but reserved leave to the council to revive the application if later conduct by Ms Lee showed a need for the council to be protected.

Orders