Saffioti v Jim Stephenson Architect Ltd - [2012] NZHC 2519

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1926 [2012] NZHC 2519

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

BETWEEN CARL SANTO SAFFIOTI AND EIJA MARITA LINDEN SAFFIOTI Appellants

ANDJIM STEPHENSON ARCHITECT LIMITED
Respondent

Hearing: 21 August 2012

Counsel: R J Hooker for Appellants
J K Goodall for Respondent

Judgment: 1 October 2012

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 11 a.m. on 1 October 2012.

Solicitors: Vallant Hooker & Partners, Auckland – rhooker@vhp.co.nz
Alan Jones Law Partnership, Auckland – alan@ajlaw.co.nz

Copy to: J K Goodall, Auckland – kjg@jasongoodall.conz

SAFFIOTI AND SAFFIOTI V JIM STEPHENSON ARCHITECT LIMITED HC AK CIV-2012-404-1926 [1
October 2012]

Introduction

[1] The appellants, Mr and Mrs Saffioti, purchased a property in Mt Albert, Auckland from the original homeowners, Mr and Mrs Ward. They later discovered it was a leaky home. They filed a claim in the Weathertight Homes Tribunal (the Tribunal) against a number of people allegedly involved in the construction or design of the home, including the respondent, Jim Stephenson Architect Limited (JSAL).

[2] JSAL applied to the Tribunal to be removed from the proceedings under s 112 of the Weathertight Homes Resolution Service Act 2006 (the Act) which provides that the Tribunal may, on the application of any party or on its own initiative, order that a person be struck out as a party to adjudication proceedings if the Tribunal considers it fair and appropriate in all the circumstances to do so.

[3] The Tribunal concluded that the case against JSAL was unlikely to succeed and, accordingly, that it was “fair and appropriate” to remove JSAL as a party. Mr and Mrs Saffioti now appeal that decision. The key issue on appeal concerns how the Tribunal should approach applications to remove parties from proceedings.

[4] The Saffiotis argue that the Tribunal erred by not following the traditional “strike out” approach, as applied in the context of High Court proceedings. They say that if that approach had been taken, the removal application would have failed. On a strike out approach, it is generally assumed that all pleaded facts are correct and can be proven. The Court then considers, on the basis of those facts, whether the cause of action pleaded is tenable.

[5] In this case, the Tribunal considered fairly extensive evidence, including evidence that was inconsistent with the pleadings, in order to determine whether it was fair and appropriate to remove JSAL from the proceedings. JSAL argued that this was the correct approach and that it led to the correct outcome.

[6] A secondary issue on appeal is whether, as a matter of law, the claim against

JSAL was doomed to fail in any event. The basis for this submission was essentially

that JSAL owed no duty of care in the circumstances of this case, because a builder that proceeded with work in the absence of…

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 2519
Decision Date: 1 October 2012

CaseChat Overview and Summary

Mr and Mrs Saffioti appealed a decision of the Weathertight Homes Tribunal (the Tribunal) which removed Jim Stephenson Architect Limited (JSAL) as a party to a claim against them. The Saffiotis sought to challenge the construction of their home, which they claimed was leaky. JSAL was identified as a party because it had prepared plans for the building. The Tribunal removed JSAL as a party to the claim under s 112 of the Weathertight Homes Resolution Service Act 2006 (the Act) on the basis that it was fair and appropriate in all the circumstances. The Saffiotis challenged this decision, claiming that the Tribunal should have applied the traditional strike out approach to the removal application. The key issue on appeal was whether the Tribunal took the correct approach to removal of a party under s 112, or whether it should have taken the general strike out approach, as applied in the Courts. Katz J found that the Tribunal had taken the correct approach. Katz J held that the language of s 112 conferred a somewhat wider jurisdiction than the comparable jurisdiction under r 15.1 of the High Court Rules. However, Katz J did not accept that the parameters of that jurisdiction were wide enough to justify the removal of JSAL from the proceedings on the “fair and appropriate” ground. Katz J concluded that the Saffiotis had raised relevant and appropriate matters for further exploration at a substantive hearing and the disputed issues were unsuitable for determination under s 112. The appeal was allowed and the Tribunal’s decision to remove JSAL from the claim under s 112 of the Act was accordingly quashed. The Saffiotis were entitled to costs on a 2B basis.

Orders