O'Connor v Auckland Council

[2012] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-004779 [2012] NZHC 1296

UNDER  the Weathertight Homes Resolution

Services Act 2006

BETWEEN  PATRICK MICHAEL O'CONNOR Appellant

ANDTHE AUCKLAND COUNCIL First Respondent

ANDFEARON HAY ARCHITECTS LIMITED Second Respondent

ANDARCHITECTURAL WINDOW SOLUTIONS LIMITED

Third Respondent

ANDSHAY O'BRIEN Fourth Respondent

Hearing:         5 June 2012

Counsel:         T J Rainey for the Appellant

Judgment:      5 June 2012

(ORAL) JUDGMENT OF DUFFY J

Solicitors:    Rainey Law P O Box 1648 Shortland Street Auckland 1140 for the Appellant

Copies To:   Heaney and Co P O Box 105391 Auckland City Auckland 1143 (DX CP18503)

for the First Respondent

Kennedys P O Box 3158 Shortland Street Auckland 1140 (DX CP20542) for the Second Respondent

Architectural  Window  Solutions  Limited  (Mr  Wood,  Director)  Facsimile

09 525 6882 (Third Respondent)

T  J  Herbert  Vulcan  Building  Chambers  Level  4 Vulcan  Chambers  Corner

Vulcan Lane and Queen Street Auckland 1010 for the Fourth Respondent

O'CONNOR v AUCKLAND COUNCIL HC AK CIV-2011-404-004779 [5 June 2012]

[1]      Mr O’Connor appeals against a costs award that the Weathertight Homes Tribunal (the Tribunal) made against him under s 91 of the Weathertight Homes Resolution  Services  Act  2006  (the  Act).    All  of  the  respondent  parties  have withdrawn their opposition to the appeal.  They have done so in circumstances where agreement was reached that Mr O’Connor would not seek costs against them.

[2]      The Court must still determine the appeal and “confirm, modify, or reverse the determination or any part of it”: see s 95 of the Act.  I am satisfied that the appeal must be allowed.   The Tribunal did not have jurisdiction to make a costs award against Mr O’Connor.  The Tribunal only has power to award costs against “parties to the adjudication”: see s 91 of the Act; and see Riveroaks Farm Ltd v Holland HC Tauranga CIV-2010-470-584, 16 February 2011.   He was not a party to the adjudication.

[3]      Mr O’Connor was a director of Overview Trustee Limited, which was a claimant before the Tribunal.  At [109] of the decision on costs, the Tribunal found that Mr O’Connor was a party, for the purposes of s 91 in that the Act’s definition of a “party” includes the “claimant”.   The “claimant” is defined as the person who applies to the chief executive to have an assessor’s report prepared.  It is here that the Tribunal went wrong and erred in law.  It found that Mr O’Connor was the person who applied for the assessor’s report.  I do not have a copy of this application, and it seems the application was not before the Tribunal, but it is clear to me that any application that Mr O’Connor signed would have been signed by him in his role as director of Overview Trustee Limited and not in his own right.

[4]      When ss 9 and 32 are read together, it is clear that it is the owner of a property who must make the claim to the Tribunal.  This is further confirmed in s 14, which sets out the eligibility to make a claim.    Turner v Attorney-General HC Auckland CIV-2011-404-3968, 7 October 2011 is an example of a request for an assessor’s report that was found to be defective because it was made by natural persons, when the owner of the property was a limited liability company in which they held an interest.  Thus, Mr O’Connor could only have made the claim on behalf of Overview Trustee Limited.

[5]      I  am  satisfied  that  here,  there  was  absolutely  no  basis  for  treating Mr O’Connor and Overview Trustee Limited as being one and the same person.  To do so flies in the face of the law regarding the separate legal personalities of companies. The Tribunal has overlooked this well settled principle.

[6]      It follows that the appeal is successful; and the costs order is set aside.

Duffy J