Lockwood v Boe - [2017] NZHC 982

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2921 [2017] NZHC 982

UNDER
The Weathertight Homes Resolution

Services Act 2006, sections 93 to 96

IN THE MATTER OF

Procedural Order 7 in TRI 2015 100 22 dated 19 October 2016

BETWEEN

GARTH LOCKWOOD Appellant

AND

JOHN WILLIAM BOE First Respondent

ROBYN JEAN BOE Second Respondent

Hearing: 2 May 2017

Appearances:

R M Dillon for the Appellant
K I Bond and LHH Hunt for the Respondents

Judgment:

15 May 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 15 May 2017 at 4pm
Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:…………………………

Counsel/Solicitors:
R M Dillon, Queen City Law, Auckland
K I Bond, Whitfield Braun Limited, Hamilton
LHH Hunt, Whitfield Braun Limited, Hamilton

LOCKWOOD v BOE [2017] NZHC 982 [15 May 2017]

Introduction

[1] The appellant (Mr Lockwood) appeals from a decision by the Weathertight Homes Tribunal removing the respondents (Mr and Mrs Boe) from adjudication proceedings before the Tribunal.1 Such decision was made “with some hesitation” relying on the power conferred by s 112 of the Weathertight Homes Resolution Services Act 2006 (the Act) and on the principal grounds that there were no genuinely and reasonably disputed factual or credibility issues by reference to which a claim against Mr and Mrs Boe could succeed.

[2] It is accepted by all parties that the appeal appropriately proceeds on the well- known principles in Austin, Nichols & Co Inc v Stichting Lodestar.2

[3] The central issue in the appeal is whether what is acknowledged as being a conservative jurisdiction under s 112 was appropriately exercised having regard to the specific facts of the case. Although extensive authority was cited by both counsel I do not regard any of the relevant legal principles as materially in dispute and see the case in essentially factual terms.

Background

[4] Mr Lockwood is first respondent in proceedings brought before the Tribunal by the Robyn Boe Family Trust and John Boe Family Trust. The Trust owns a house at 1 Jackman Avenue, Whitianga which was built between 2003 and 2006. A Code Compliance Certificate was issued on 14 September 2006. The property on which the house was built was owned by JRB Limited (JRB), a company associated with Mr and Mrs Boe and of which they were directors.

[5] In September 2006, after completion of the construction, the property was transferred to the claimant trusts.

1 Robyn Boe Family Trust v Lockwood WHT Auckland TRI-2016-100-22, 19 October 2016 (Procedural Order 7).
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[6] The claimants say the house was built defectively and suffered damage as a result. Remedial work was carried out during 2012 and a Code Compliance Certificate for that work issued in February 2013.

[7] The claimants applied to the Weathertight Homes Resolution Service (WHRS) in 2008. After the remedial works were completed they sought assistance under the Government’s…

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: [2017] NZHC 982
Decision Date: 15 May 2017

CaseChat Overview and Summary

In this case, the appellant, Garth Lockwood, appealed a decision by the Weathertight Homes Tribunal to remove the respondents, John William Boe and Robyn Jean Boe, from adjudication proceedings before the Tribunal. The central issue in the appeal was whether the Tribunal appropriately exercised its jurisdiction under s 112 of the Weathertight Homes Resolution Services Act 2006. Lockwood argued that the Tribunal did not adopt a sufficiently cautious approach and should have been more influenced by the jurisprudence under r 5.56 of the High Court Rules in relation to strike-out applications. On the other hand, the Boes submitted that the evidence showed they were not physically able to supervise the trades, nor were they qualified to do so, and that Lockwood assumed and discharged the responsibility of supervision.

The court found that the Tribunal should have allowed the claims to be tested in the normal way, as the claims were not so weak as to be untenable. The contractual framework for the construction of the house was ambiguous, and there was evidence of the Boes' direct control and supervision of certain subtrades. The court also noted that the Boes did not maintain a clear distinction between personal and company involvement in the project. Therefore, the court concluded that the Tribunal erred in removing the Boes from the proceedings, and the appeal was allowed. The court awarded costs to the appellant on a 2B basis, with a specific timetable for filing and serving memoranda in case of any disagreement as to quantum.

Orders