Roebuck v Liddle - [2023] NZHC 2350

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-74

[2023] NZHC 2350

BETWEEN
JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK

Plaintiff

JASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK and PETER

ROEBUCK as trustees of the Tahi Trust Second Plaintiffs

AND

ROBERT JAMES LIDDLE

First Defendant

AMANDA ELIZABETH LIDDLE
Second Defendant

HASTINGS DISTRICT COUNCIL

Third Defendant Cont over…

Hearing: 21 August 2023

Counsel:

J L Bates for Plaintiffs

J K Goodall KC and S P Farnell for Third Defendant

Date of Judgment:

28 August 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 28 August 2023 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Brown & Bates Ltd, Napier for the plaintiffs Rice Speir, Auckland for third defendant

ROEBUCK v LIDDLE [2023] NZHC 2350 [28 August 2023]

AND

SIGMA CONSULTING ENGINEERS

LIMITED
Fourth Defendant

REDHEAD ARCHITECTURE LIMITED

Fifth Defendant

FORMWORKS HB LIMITED

Sixth Defendant

HARDCORE CONCRETE LIMITED
Seventh Defendant

M J FOGARTY PAINTING & DECORATING LIMITED

Eighth Defendant

WYNANDS MASONRY LIMITED

Ninth Defendant

REALDEAL ROOFING LIMITED

Tenth Defendant

HAWKES BAY MEMBRANE SOLUTIONS LIMITED

Eleventh Defendant

MITCHELL LEITZ
Twelfth Defendant

WYNANDS MASONRY (2015) LIMITED

Thirteenth Defendant

ANTHONY JOHN MICHAEL WYNANDS

Fourteenth Defendant

GA SCARFE BUILDER LIMITED
Fifteenth defendant

GRAHAM ALAN SCARFE

Sixteenth Defendant

Introduction

[1] The plaintiffs are the owners of a property in Havelock North (the property). In 2019, the plaintiffs arranged for a residential building to be constructed on the property pursuant to a building consent.

[2] The third defendant, Hastings District Council (the Council), is the territorial authority responsible for issuing the building consent and performing the relevant functions as a building consent authority under the Building Act 2004.

[3] The property is in a flood risk area. The terms of the building consent prescribed a finished height for the floor slab, which incorporates the foundations, and required that the finished height be confirmed by a surveyor’s certificate before the Council’s first inspection.

[4] In this proceeding, the plaintiffs allege that the building has been constructed with defects, the most significant being that the floor slab has not been constructed to the required height. The causes of action include a claim against the Council for negligence when performing its statutory functions.

[5] The discovery process has become protracted. The Council has provided several affidavits of documents, the most recent being its third supplementary affidavit of documents dated 6 July 2023. The plaintiffs now challenge the Council’s claims for privilege in respect of eight documents included in the Council’s discovery.

[6] On 19 May 2023, the plaintiffs filed an interlocutory application seeking, inter alia, an order that “the documents the [Council] maintains are subject to litigation privilege be produced to the Court to inspect for the purpose of deciding the validity of the claims for litigation privilege …” Read literally, the proposed order applied to all of the Council’s privileged documents, including hundreds of group-listed documents.

[7] On 19…

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 Roebuck v Liddle

Details

AGLC: Roebuck v Liddle [2023] NZHC 2350
Case: [2023] NZHC 2350
Decision Date: 28 August 2023

CaseChat Overview and Summary

In Roebuck v Liddle, the plaintiffs, Jason Gregory Roebuck and Victoria Ann Roebuck, sought to challenge the Hastings District Council's claims of privilege over certain documents. The plaintiffs argued that these documents were relevant to their case concerning alleged defects in a residential building constructed on their property in Havelock North. The Council, acting as the building consent authority under the Building Act 2004, had issued a building consent and was alleged to have been negligent in its statutory functions. The Council claimed litigation privilege under section 56 of the Evidence Act 2006 and legal advice privilege under section 54 of the Act for eight specific documents. The plaintiffs sought an order for the documents to be produced to the Court for inspection.

The court considered the applicable principles of privilege and found that the Council's claims of privilege were largely valid. The Council reasonably apprehended a claim against it on 3 July 2020, when it was informed that the floor slab did not comply with the conditions of the building consent. The documents in question were prepared after this date and for the dominant purpose of preparing for a potential claim against the Council. The draft notice to fix and the internal email from 3 July 2020 attracted legal advice privilege, while the spreadsheet from 13 July 2020 and the internal email from 10 September 2020 attracted litigation privilege. The annotations on the QSPEC defects list and the provision of that list by email were also privileged under section 56 of the Act.

The plaintiffs' application for orders setting aside or modifying the Council's claims of privilege was dismissed. The Council was the successful party, and costs were to follow the event. The plaintiffs' counsel was permitted to file written submissions on costs, up to three pages, by 15 September 2023. The Council could file submissions by 8 September 2023, with no right of reply, and the Associate Judge would determine the costs on the papers.

Orders