Saffioti v Auckland Council - [2012] NZHC 2394

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-002091 [2012] NZHC 2394

IN THE MATTER OF an appeal against the decision of the
Weathertight Homes Tribunal at Auckland

BETWEEN CARL SANTO SAFFIOTI AND EIJA MARITA LINDEN SAFFIOTI Applicants

ANDAUCKLAND COUNCIL Respondent

Hearing: 30 August 2012

Counsel: R J Hooker for the Applicants
D J Barr for the Respondent

Judgment: 14 September 2012

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 14 September 2012 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

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

Solicitors / Counsel:
Mr R J Hooker, Vallant Hooker & Partners, Solicitors, Auckland
Mr G J Christie / Mr D J Barr, Simpson Grierson, Solicitors, Auckland

SAFFIOTI V AUCKLAND COUNCIL HC AK CIV-2012-404-002091 [14 September 2012]

[1] The applicants commenced a claim in the Weathertight Homes Tribunal against 10 defendants, including the respondent Council. The Council applied for an order that it be removed as a party pursuant to s 112 of the Weathertight Homes Resolution Services Act 2006 (the Weathertight Act). An order to that effect was made by the Tribunal on 21 December 2011.

[2] The applicants now seek leave to appeal out of time against that decision.

The appeal provisions under s 94(2) of the Weathertight Act and leave to appeal principles

[3] Under s 94(2) a notice of appeal must be filed within 20 working days after the date of the Tribunal’s decision or “within any further time that the … court may allow”. The notice of appeal should have been filed by 10 February 2012. The application for leave was filed on 18 April 2012.

[4] The over-riding consideration on an application of this nature is where the interests of justice lie.1 Factors that bear on this include: (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the appeal, which in this case requires consideration of the merit of the substantive claim against the Council; (4) the party’s conduct; (5) the extent of prejudice; and (6) whether the appeal raises any issue of public importance.2

[5] These factors are not exhaustive. And particular matters are not to be given priority as a matter of course. For example, a persuasive explanation for the delay may not warrant leave being granted if the applicant has little prospect of success. The reverse could apply – the reasons for delay may not be persuasive, but the case may be strong. Prejudice is to be assessed in the overall context, not only in relation
to the parties. Others may be affected.

1 See Stedmances v Stedmances [1987] 2 NZLR 336 (CA) at 340; Robertson v Gilbert [2010] NZCA
429 at [24]; My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19
PRNZ 518 at [19]; Barber v Cottle [2010] NZCA 31 at [6].
2 See the discussion in McGechan on Procedure (looseleaf ed, Brookers) at CR29A.02 in respect of r 29A in the Court of Appeal (Civil)…

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.

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Details

Case: [2012] NZHC 2394
Decision Date: 14 September 2012

CaseChat Overview and Summary

The applicants sought leave to appeal out of time from a decision of the Weathertight Homes Tribunal which had ordered that the Auckland Council be removed as a party to the proceedings. The appeal provisions in the Weathertight Homes Resolution Services Act 2006 and the principles relating to leave to appeal were considered. It was held that the delay in lodging the appeal was not disproportionate and that there was a reasonable explanation for the delay. The merits of the claim against the Council were considered in detail. It was held that the claim against the Council was not capable of succeeding. The Council had not breached any statutory duty to include in the Land Information Memorandum (LIM) information that the code compliance certificate had been issued by a building certifier, or that the building certifier had been deregistered. It was also held that the claim against the Council could not succeed even if there was a breach of statutory duty. The Supreme Court decision in McNamara v Auckland City Council was applied. The Council had a complete defence under s 50(3) of the Building Act 1991. The application for leave to appeal was dismissed and the Council was entitled to costs.

Orders