Lee v Whangarei District Council - [2014] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2013-488-000469 [2014] NZHC 1002

BETWEEN
OLIVIA LEE

Applicant

AND

WHANGAREI DISTRICT COUNCIL First Respondent

K J FUNG
Second Respondent

Contd…/…

Hearing: 13 May 2014

Appearances:

Applicant in Person (with T Connor as McKenzie Friend) S B Mitchell and H E Waldron for the First Respondent

A Holgate for the Third Respondent
G Swanepoel for the Fourth Respondent

Judgment:

14 May 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 May 2014 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

LEE v WHANGAREI DISTRICT COUNCIL & ORS [2014] NZHC 1002 [14 May 2014]

ANDALTHERM ALUMINIUM NORTHLAND LIMITED Third Respondent

NORTHLAND WATERPROOFING SOLUTIONS LIMITED
Fourth Respondent
DESIGN METAL ROOFING LIMITED
Fifth Respondent

Introduction

[1] Ms Lee seeks leave to appeal out of time a decision given by Mr R M Carter, a member of the Weathertight Homes Tribunal, dated 7 March 2013.1 The notice of appeal was not filed until 20 November 2013.

[2] The application is opposed by the first respondent, the Whangarei District Council, the third respondent, Altherm Aluminium Northland Limited, and the fourth respondent, Northland Waterproofing Solutions Limited.

Factual Background

[3] Ms Lee owns a house in Sandford Road in Ruakaka, Whangarei. She claims that the property suffers from weathertightness problems, and that there has been resulting damage.

[4] On 12 August 2008, Ms Lee applied to the Weathertight Homes Resolution Service for an assessor’s report on the property. That assessment was undertaken in September 2008. The assessor concluded that the house suffered from numerous weathertightness defects, including defects associated with the cladding, the joinery, and the roof. The assessor was also of the view that there had been breaches of mandatory provisions contained in the New Zealand Building Code, and that the house was a leaky building, as defined in the Weathertight Homes Resolution Services Act 2006.

[5] In March 2010, Ms Lee filed a statement of claim with the Weathertight Homes Tribunal. She claimed $460,000 by way of damages from the following respondents:

(a) The Whangarei District Council, as the relevant territorial authority;

(b) A Mr Fung, who is a draftsperson;

1 Lee v Whangarei District Council [2013] NZWHT Auckland 5.

(c) Altherm Aluminium Northland Limited (the joinery manufacturer and installer);

(d) Northland Waterproofing Solutions Limited (the waterproofer); and

(e) Design Metal Roofing Limited (the roofer).

[6] All but Mr Fung opposed Ms Lee’s application on the ground that Ms Lee was prevented from bringing the claim in the Weathertight Homes Tribunal pursuant to s 60(5) of the Act. That section prevents an eligible claim being adjudicated, or prevents adjudication proceedings from continuing, if the subject matter of the claim is the subject of other proceedings initiated by the claimant or brought by way of counterclaim.

[7] As I understand it, the matter was dealt with on the papers – after all parties had had the opportunity to file submissions. On 7 March 2014,…

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 1002
Decision Date: 14 May 2014

CaseChat Overview and Summary

Olivia Lee seeks leave to appeal out of time a decision of a member of the Weathertight Homes Tribunal, dated 7 March 2013, which dismissed her claim against the Whangarei District Council and others. The application is opposed by the Council and two of the other respondents. The court must determine whether leave to appeal out of time should be granted in the interests of justice. The delay in appealing is significant, and Ms Lee has not provided a credible reason for the delay. Allowing an out-of-time appeal could prejudice the respondents, who have reasonably assumed the matter is concluded. The prospects of success on appeal are remote given Ms Lee's previous unsuccessful litigation against some of the respondents. For these reasons, the court declines Ms Lee's application for leave to appeal. The first, third and fourth respondents are each entitled to costs. The court directs the parties to file memoranda in support of any applications for costs within 10 working days of the judgment. The court will then deal with the issue of costs on the papers, unless it requires the assistance of Ms Lee and counsel.

Orders