Roebuck v Liddle - [2023] NZHC 1479

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-74

[2023] NZHC 1479

BETWEEN
JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK
Plaintiffs

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

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

ROEBUCK v LIDDLE [2023] NZHC 1479 [15 June 2023]

REALDEAL ROOFING LIMITED
Tenth Defendant

HAWKES BAY MEMBRANE SOLUTIONS LIMITED
Eleventh Defendant

MITCHELL LEITZ
Twelfth Defendant

WYNANDS MASONARY (2015) LIMITED
Thirteenth Defendant

ANTHONY JOHN MICHAEL WYNANDS
Fourteenth Defendant

G A SCARFE BUILDER LIMITED
Fifteenth Defendant

GRAHAM ALAN SCARFE
Sixteenth Defendant

Hearing: 6 June 2023

Appearances:

J L Bates for Plaintiffs

J K Goodall KC and S P Farnell for Third Defendant No appearance by or for First, Second or Fourth to Sixteenth Defendants

Judgment:

15 June 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

Introduction

[1] The plaintiffs have applied for orders that the third defendant’s statement of defence be struck out, or alternatively for leave to apply for summary judgment against the third defendant. The application has been set down for hearing on 22 June 2023. The grounds for the application to strike out include that the third defendant failed to comply with a discovery order for standard discovery in the proceeding made on 15 July 2022, and the third defendant, as a local authority, is under a duty to act as a model litigant which it has failed to do.

[2] The plaintiffs have now applied for an order that the third defendant’s deponents in respect of the application for strike out, Gerardus van Veen and John O’Shaughnessy, appear for cross-examination at the hearing of the plaintiffs’ application on 22 June 2023 to answer questions about the reasons documents were not disclosed in the third defendant’s original affidavit of documents affirmed 12 September 2022.

[3] The plaintiffs have also made an application challenging the third defendant’s claims to litigation privilege over certain documents. However, that application has been adjourned (following a telephone conference on 6 June 2023) pending the outcome of the third defendant’s further review of its documents and claims to litigation privilege.

Context

[4] The plaintiffs’ substantive claim against the third defendant relates to the terms of a building consent issued by the third defendant which included a requirement that a residential building to be built at 36 West Street, Havelock North was to be located by survey to confirm a certain floor height. The plaintiffs say that this condition was to protect the building from flooding due to the property being in a flood zone. The surveyor’s certificate confirming the siting was to be made available to the third defendant prior to the first inspection or to the inspecting officer…

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 1479
Case: [2023] NZHC 1479
Decision Date: 15 June 2023

CaseChat Overview and Summary

The case of Roebuck v Liddle involves the plaintiffs, Jason Gregory Roebuck and Victoria Ann Roebuck, along with Peter Roebuck as trustees of the Tahi Trust, who have filed a lawsuit against multiple defendants including the Hastings District Council. The plaintiffs are seeking relief based on a building consent issued by the Hastings District Council, which they claim included a requirement for a surveyor’s certificate confirming the siting of a residential building, intended to protect the property from flooding. The plaintiffs allege that the building was constructed below the required floor height without obtaining the necessary surveyor’s certificate, and that the council failed to exercise reasonable care and skill during inspections. The court was required to decide whether special circumstances existed to allow cross-examination of two council employees, Gerardus van Veen and John O'Shaughnessy, regarding the non-disclosure of certain documents. The plaintiffs argued that these documents contained admissions of fault by the council in inspecting the building without a surveyor's certificate and were deliberately withheld. The court examined whether the circumstances warranted cross-examination to avoid potential injustice, considering factors such as the nature of the breach, its impact on the proceedings, and whether the council's conduct had jeopardized the fairness of the trial. The court concluded that the plaintiffs had not established the special circumstances necessary for cross-examination, noting that the issues regarding document disclosure were not uncommon in litigation. The court found that it could properly assess the plaintiffs' application for strike-out without cross-examination, as the affidavits provided sufficient information to evaluate the council's explanations for non-disclosure and the potential impact on the plaintiffs' fair trial rights.

Orders