Linehan v Thames-Coromandel District Council - [2023] NZSC 149

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 92/2023
[2023] NZSC 149

BETWEEN	BRIAN JOSEPH LINEHAN, SHANNON JAMES WALSH AND ROSS DOUGLAS BLAIR AS TRUSTEES OF THE ELIZA TRUST Applicants
AND	THAMES-COROMANDEL DISTRICT COUNCIL Respondent

Court:	O’Regan, Ellen France and Kós JJ
Counsel:	T J Rainey and V A Whitfield for Applicants D J Neutze for Respondent
Judgment:	10 November 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

The applicants (trustees of a trust settled by Dr Brian Linehan) brought a claim against the Thames‑Coromandel District Council for negligence in issuing building consents, inspecting and issuing code compliance certificates in relation to remediation work carried out on a house in Whitianga. The claim related to the Council’s actions for the remedial works undertaken in 2010/2011 and 2016. The High Court found the Council negligent in relation to the issuing of a code compliance certificate in 2011 (the certification breach) and in respect of the issue of a building consent in 2016 (the consenting breach).[1] The High Court awarded damages for both the certification breach and the consenting breach (totalling $796,138) and general damages for stress and anxiety ($15,000). However, these figures were reduced by 50 per cent to reflect the applicants’ contributory negligence. The Court of Appeal dismissed the applicants’ appeal to that Court.[2] The applicants have filed an application for leave to appeal to this Court on the issue of contributory negligence.

Background

[1]Linehan v Thames Coromandel District Council [2021] NZHC 3234 (Hinton J) [HC judgment].

[2]Linehan v Thames‑Coromandel District Council [2023] NZCA 288 (Cooper P, Collins and Katz JJ) [CA judgment].

The background is set out in detail in the Court of Appeal judgment.[3] We need only note the following. After the applicants’ property suffered a significant water leak in 2010, the trustees engaged a builder, Bernard Barber, to undertake the necessary remedial work. The work commenced without a building consent but, after the Council issued a stop work notice, building consent was sought. The consent sought was based on design plans prepared by Sherri Simpson of Simpson Design Service. A building consent was issued on 20 September 2010 which, among other things, approved the design plans requiring the deck tiles to be placed on deck jacks (raised platforms above the deck membrane) and not directly on that membrane.
[3]At [6]–[20].
During the remediation work, however, Mr Barber offered Dr Linehan the choice of either the deck jack option or directly attaching the tiles to the deck membrane. Dr Linehan’s preference was for the latter option and the work proceeded on that basis. The Council inspected the building work authorised under the 2010 consent and issued a code compliance certificate on 19 December 2011.
The failure to follow the approved design in relation to the deck tiles subsequently contributed to the development of further weathertightness issues. There was a further…

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: [2023] NZSC 149
Decision Date: 10 November 2023

CaseChat Overview and Summary

The applicants, trustees of the Eliza Trust, sought leave to appeal against the Thames-Coromandel District Council concerning the Council's negligence in issuing building consents and inspecting and issuing code compliance certificates related to remediation work done on a house in Whitianga. The applicants' claim pertained to the Council's actions in 2010/2011 and 2016, for which the High Court found the Council negligent in issuing a code compliance certificate in 2011 and a building consent in 2016. The Court of Appeal upheld the High Court's findings and dismissed the applicants' appeal. The applicants now sought leave to appeal to the Supreme Court on the issue of contributory negligence. The Supreme Court was required to decide whether the proposed appeal raised matters of general or public importance, or if it was necessary in the interests of justice to avoid a substantial miscarriage of justice.

The Court noted that the proposed appeal was primarily concerned with the application of contributory negligence principles to the specific facts of the case. The Court concluded that no questions of general or public importance arose as the principles of contributory negligence were not challenged. Additionally, the Court found that the Court of Appeal's approach did not give rise to the appearance of a miscarriage of justice, as the assessment of the appropriate reduction for contributory negligence was based on the circumstances considered by the Court of Appeal. The Supreme Court dismissed the application for leave to appeal and ordered the applicants to pay the respondent's costs of $2,500.

The Court found that the applicants' proposed appeal would not raise any new legal issues but rather revisit the arguments made in the Court of Appeal. The Court determined that the appeal would not result in any significant change to the outcome of the case and would not address any broader legal principles or issues of public importance. As a result, the Supreme Court dismissed the application for leave to appeal and ordered the applicants to pay the respondent's costs.

Orders