McLaughlan v Zhong HC Auckland CIV-2011-404-004508
[2011] NZHC 970
•17 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-004508
UNDER the Weathertight Homes Resolution
Services Act 2006
IN THE MATTER OF an appeal against a decision of the
Weathertight Homes Tribunal at Auckland
BETWEEN
ROSE MARY MCLAUGHLAN Appellant
AND
HONG ZHONG AND RUN ZHONG First Respondents
AND
AUCKLAND COUNCIL Second Respondents
AND
YA WEI LI
Third RespondentAND
ORIENT BUILDERS LIMITED Fourth Respondent
AND
LU ZHENG
Fifth RespondentAND
HBRC LIMITED Sixth Respondent
Hearing:
17 August 2011
Appearances: R J Thompson for Appellant
T J Rainey and E A Hayes for First Respondents
C R Goode for Second Respondent
No appearance for Third to Sixth Respondents
Judgment: 17 August 2011
ORAL JUDGMENT OF WHATA J
MCLAUGHLAN V ZHONG HC AK CIV-2011-404-004508 17 August 2011
Solicitors:
Thomas Dewar Sziranyi & Letts, PO Box 31240, Lower Hutt 5040
Rainey Law, PO Box 1648, Shortland Street, Auckland 1140
Heaney & Co, PO Box 105 391, Auckland 1143
Copy to:R J Thompson, PO Box 3320, Shortland Street, Auckland 1140
[1] This judgment concerns an application for stay, leave to adduce evidence and re-hearing of the evidence of Mr Ian Alvey.
[2] The immediate background to this is an appeal against a decision of the
Weathertight Homes Tribunal.
Stay
[3] It transpires that the parties consent to stay and on that basis an order is made accordingly.
Leave to adduce evidence
[4] The appellant seeks to adduce evidence about: (a) The quality of the inspections;
(b) The reasonableness of relying on producer statements; (c) Ascertainability of defects by inspection;
(d) BIA practice;
(e) Extent of completion; and
(f) Scope of exclusion. [5] The grounds in support are:
(a) Evidence is cogent and material;
(b) It is necessary to meet the adjudicator’s reasons; and
(c) The appellant is self-represented.
[6] In essence the appellant contends that the new evidence is necessary to fairly resolve the matters in dispute on appeal.
Opposition
[7] In response the first respondents highlight the following matters:
(a) The appellant has had a full opportunity to produce the evidence now sought;
(b) The appellant had proper notice of the relevant allegations;
(c) The appellant elected to represent herself – there is no prima facie unfairness when she does – even if poorly;
(d) The appellant was advised of the risks; and
(e) The evidence is not fresh evidence.
[8] The first respondent relies on the Supreme Court decision in Paper Reclaim
Ltd v Aotearoa International Ltd (Further Evidence) (No.2)[1] as follows:
[16] … The appellate Court is required to determine issues which had to be determined in the proceeding of the Court appealed from on the basis of the evidence appearing in the lower Court’s record. This may be supplemented by adducing fresh evidence, but only within established guidelines. It would ordinarily be outside the scope of the statutory direction to proceed by way of rehearing for this Court to allow a new case to be put up by a party to the appeal on which fresh evidence had to be called. The short answer, accordingly, to the applications to add the proposed new ground of appeal and to call fresh evidence to support it, is that they would take the appellate process outside of appropriate bounds.
[1] Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No.2) [2007] 2 NZLR 124.
[9] The first respondent relies on a further passage citing the following principles:[2]
[2] Ibid, at [19], citing Dragicevich v Martinovich [1969] NZLR 306.
[19] … In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence
could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
[10] The first respondent’s basic contention is that contrary to the abovementioned reasonable diligence principles, the evidence now sought could have been adduced at first instance. When combined with the request to reinterrogate Mr Alvey, this obviously, the first respondent says, is an attempt to simply relitigate a losing position.
Fresh evidence
[11] I accept the first respondent’s contentions that:
(a) The production of the evidence was carefully case managed with ample opportunity given to the appellant to address the core issues;[3]
[3] Refer to Procedural Orders 7, 8, 9, 13 and 17.
(b)The core issue of the appellant’s responsibility was before the Tribunal, and was pleaded by her in her statement of defence at paragraphs 31, 32, and 34 as follows:
31. With respect to paragraph 37
(a) she denies carrying out the inspections of the building work, since the inspections were undertaken by employees of A1 Building Certifiers Ltd
(b) she admits to issuing a Code Compliance Certificate
32.She denies that she owed a duty of care to the claimant to exercise reasonable skill and care in performing the building control functions. The second respondent considers that her duty of care relates to the operation of her business, that staff be appropriately qualified and supervised and that appropriate systems and processes were in place and implemented. Further she says that her duty extends only to the duty of a director of a company.
…
34.She does not accept that policy consideration supports the imposition of the said duty of care. A1 Building Certifiers Ltd was a well run business and recognised by the Building Industry Authority as a building certifier organisation that demonstrated best practice.
[12] The evidence sought by the appellant does appear to seek to address the core issue of her responsibility and plainly was evidence that could have been adduced at trial, namely evidence as to quality, reasonableness, acertainability, practice, extent and scope as detailed at paragraph [4] above.
[13] The appellant, therefore, does not pass the first of the abovementioned criteria. Nevertheless, the ultimate question must be one of fairness to the parties. The appellant was not represented by counsel. While this by itself does not invoke fairness principles or issues of procedural irregularity, this Court must be careful to ensure that the Tribunal discharged its procedural duties.
[14] In this regard I respectfully adopt and acknowledge the observations of Duffy J in Complaints Committee No.1 of the Auckland District Law Society v P[4]as follows:
[21] There is always room for the special case where fresh evidence is admitted, even though it was reasonably available for the hearing at first instance. The discretionary power in r 716 is broad enough to permit a Court to allow such evidence to be adduced. Furthermore, discretionary authority should never be fettered by fixed guidelines. But such exceptions would be rare and to occur, the fresh evidence would need to be cogent and material the appeal’s resolution, as was the case in Comalco. When the fresh evidence is neither relevant nor likely to be material and, as well as that, is not new (in the sense it was reasonably available at the first hearing) there is no apparent basis for departing from the standard tests for its admission.
[4] Complaints Committee No.1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 at 764.
[15] I also respectfully adopt and refer to the approach taken by Priestley J in
Skudder v Bartercard New Zealand Ltd:[5]
[5] Skudder v Bartercard New Zealand Ltd HC Auckland CIV-2010-404-006911, 6 April 2011.
[32] On the foundation of its cogency and relevance, I unhesitatingly admit the evidence of the 30 April 2008 guarantee. It is essential to do so to grapple with the appellant’s signalled appeal points. Having advanced the argument I the District Court that he had never signed a guarantee, the appellant agreed in cross-examination that he had indeed signed the March
2007 document. Now, on appeal, he is advancing a closely related argument
that there was never any guarantee relating to Athena’s $200,000 extended credit line. The evidence the respondent wishes to adduce shows that the appellant’s asserted appeal points are plainly false. It would be a mockery of the justice system if a court were required to decide this appeal oblivious to the 30 April 2008 guarantee. For these obvious special reasons, I admit the evidence exhibiting the 30 April 2008 guarantee document, which, as I have said, was pleaded by the appellant in the District Court.
[16] I am also of the view that errors on the face of the record and mistakes of verifiable fact are matters that might properly require further and fresh evidence, even though evidence on those matters might have been available at first instance. The broad scope of evidence sought does not, however, fall into this category, and for that reason I must decline the open-ended request as presented in the affidavit of the appellant.
[17] The appellant claims, however, that there were obvious mistakes of verifiable fact in this case and in particular at paragraph 87 of the Tribunal’s decision:
(a) The Tribunal refers to an exterior cladding inspection. According to the appellant there was no such inspection and evidence is needed before this Court to demonstrate such.
(b)There was an obvious misunderstanding of process, namely that, in the appellant’s submission the Tribunal did not appreciate that the inspector signed off on production of producer statements and that any flaws post date certification. The appellant says that this was a flaw on the face of the decision.
[18] These basic claims are disputed by the first respondent, but I consider there is enough in them to warrant a closer look. It was brought to my attention that the appellant only had a limited time within which to prepare for this application and in fact did not have sufficient time to produce a draft statement on these matters.
[19] Given that, I consider it is appropriate for me to adjourn that part the application dealing with those specific matters to provide time to the appellant to produce a draft of evidence specifically dealing with those alleged mistakes of verifiable fact.
[20] Accordingly, I am prepared to adjourn the matter to enable that evidence to be produced and then considered for admissibility.
[21] In terms of any wider evidence or request for further evidence, I am prepared to grant leave at the same time for a fresh application in relation to those matters, but the broad scope currently sought by the appellant is not acceptable and there would need to be some careful refinement of any evidence sought in order to bring it within the appropriate guidelines.
[22] On the basis of the foregoing, I make the following orders:
(a) That the appellant be given six weeks to produce a draft of evidence specifically relating to the alleged mistakes of verifiable fact as set out at paragraph [17] above;
(b)The conference set down for next week should be vacated and that conference shall be dealt with by me on reconsideration of the more refined application for further evidence, and after giving due consideration to the draft evidence produced by the appellant.
(c) I grant leave to file a further and fresh application on a more refined basis dealing with some of the issues sought in this application, but I wish to make it clear that it is not my expectation that this will simply be an opportunity to re-litigate the application that was already before me. Such an application will, inevitably, be declined. The appellant must bring a much more focused application to this Court.
(d)For completeness, I decline at this stage to grant leave for Mr Alvey to be called and cross-examined.
[23] Orders accordingly.
Whata J
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