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Rea v 360 Degrees Limited

Rea v 360 Degrees Limited

Case [2022] NZHC 916 4 May 2022

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1764

[2022] NZHC 916

BETWEEN
ANTHONY JAMES REA and JUDITH REA

Plaintiffs/Respondents

AND

360 DEGREES LIMITED

First Defendant

ANTHONY MARK CATHRO
Second Defendant

TONY CATHRO CONSTRUCTION LIMITED

Third Defendant

AUCKLAND COUNCIL
Fourth Defendant

MASTER BUILD SERVICES LIMITED

Fifth Defendant (Discontinued)

Hearing: 5 April 2022

Appearances:

N L K Stone/C Harnett for the Plaintiffs/respondents

T Weston QC /JRJ Knight for the Fouth Defendant/Applicant

Judgment:

4 May 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 4 May 2022 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

Solicitors:

………………………….
Registrar/Deputy Registrar

Simpson Grierson (Jo-Anne Knight), Auckland, for the Fourth Defendant (Applicant) D A Cowan, Titirangi, Auckland, for the Plaintiffs (Respondents)
Counsel:
Thomas C Weston QC, Auckland, for the Fourth Defendant (Applicant)

REA and v 360 DEGREES LIMITED [2022] NZHC 916 [4 May 2022]

Introduction

[1] Mr Anthony Rea and Mrs Judith Rea, as trustees of the Waiatarua Trust, are the registered owners and occupiers of the residential property at 19A Te Atatū Road, Te Atatū, Auckland (the property). They allege the property suffers from serious building defects. They have brought a claim against four defendants involved in the development, construction and consenting of the property.

[2] The fourth defendant in the proceeding is Auckland Council (the Council). The plaintiffs claim the Council acted negligently in processing the building consent, undertaking inspections and issuing a Code Compliance Certificate (CCC) for the property.

[3] The Council seeks strike out of the plaintiffs’ claim against it. It says every alleged negligent act or omission occurred more than six years before the proceeding was filed, the proceeding is prima facie time-barred, and the proceeding does not plead or disclose any basis for extension or postponement of the primary limitation period.

[4] The parties disagree on the correct interpretation of the Limitation Act 2010, the Building Act 2004 and the case law that applies to the dispute.

Background

[5] On 12 December 2012, the Council issued a building consent for the property’s construction. Between January and August of the following year, it undertook inspections of the property. The Council issued a CCC for the property on 18 October 2013.

[6] The plaintiffs became owners of the property on 11 February 2014. In August of that year, they claimed under their Master Build insurance policy for minor aesthetic issues on the property.

[7] On 22 June 2015, after a site visit from Master Build Services Ltd, a letter was sent to the plaintiffs advising them that the builder, Tony Cathro Construction Ltd, would attend to the remediation. The remediation was later inspected and passed by Mr Grant Hayes of Master Build.

[8] On 14 September 2015, Tony Cathro Construction Ltd sent a letter to the developer, 360 Degrees Ltd, and copied the plaintiffs about further remedial items to which Mr Cathro would attend.

[9] On…

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.

Continue reading Rea v 360 Degrees Limited

Details

AGLC: Rea v 360 Degrees Limited [2022] NZHC 916
Case: [2022] NZHC 916
Decision Date: 4 May 2022

CaseChat Overview and Summary

The plaintiffs, Anthony and Judith Rea, brought a claim against Auckland Council for its alleged negligence in processing a building consent, undertaking inspections, and issuing a Code Compliance Certificate (CCC) for their residential property. The Council sought to have the plaintiffs' claim against it struck out, arguing that it was filed outside the limitation period and there was no basis for extension or postponement of that period. The plaintiffs opposed the application, arguing that they had late knowledge of the claim or, in the alternative, that the essential parts of the claim were made within six years of the primary period in the Limitation Act 2010. The court found that the claim was filed outside the primary period and that the plaintiffs had acquired late knowledge by May 2016. The court concluded that the claim was filed outside the late knowledge period of three years and the Council was entitled to a defence under s 11 of the Limitation Act 2010. The court granted the Council's application to strike out the proceedings and awarded costs to the Council on a 2B basis.

Orders