SF Nominees Limited v Ballan - [2014] NZHC 2977

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003396 [2014] NZHC 2977

BETWEEN
SF NOMINEES LIMITED

Plaintiff

AND

BYRON LEONARD CHARLES BALLAN

First Defendant

JANE MARGARET PHARE Second Defendant

AND

MASONRY DESIGN SOLUTIONS LIMITED

First Third Party/Applicant

MARK INNES WILSON Second Third Party/Applicant

Hearing: 26 November 2014

Appearances:

J T Turner and N C Baier for Third Parties/Applicant
S Nicolson for Defendants/Respondents

Judgment:

26 November 2014

ORAL JUDGMENT OF VENNING J

Solicitors: Spencer Legal, Auckland McVeagh Fleming, Auckland Lowndes Jordan, Auckland

Copy to: A Holmes, Auckland

SF NOMINEES LTD v BALLAN [2014] NZHC 2977 [26 November 2014]

[1] This case has a fixture scheduled for 16 February next year. The close of pleadings date has passed.

[2] The first and second third parties have applied for orders for inspection and testing pursuant to r 9.34 and for further and better discovery against the defendants.

[3] The background to the proceeding is an easement boundary dispute between the plaintiff and defendants who own neighbouring properties. The plaintiff claims the defendants are obliged to execute an easement in their favour. The defendants says that certain garden retaining walls built by the third parties for the defendants on their land on the instructions of the plaintiff are defective. It is pleaded that the design and construction are inadequate. There is both an upper and a lower footing wall in issue. In response to the defendants’ counterclaim the plaintiff has joined the third parties.

[4] The defendants have extracted two posts from the retaining walls at the northern end of the retaining wall. They say that those posts are supportive of the allegations of insufficient workmanship in the construction or design defaults by the third parties in that they are in short, insufficiently seated. The defendants consider them to be representative of all posts in the upper and lower retaining walls.

[5] The third parties do not accept that the posts are representative. They note that the topography of the property is such that the southern end of the walls are at a higher level and that if posts were extracted from the southern end that would disclose that the work had been properly designed and carried out by the third defendants, in other words they want to test the defendants’ position that the posts that have currently been extracted are representative of the entire wall.

[6] The third parties seek orders under r 9.34 enabling them to extract posts from the middle of the upper wall to the southern end of the upper wall and to the middle and southern end of the lower retaining wall – four posts in total.

[7] The parties have had some discussions regarding the matter but have been unable to agree on the basis upon which this investigative work could be carried out.

The defendants are particularly concerned about two issues, first potential liability to the plaintiffs of any consequential damage to the plaintiff’s property; and secondly, damage to the defendants’ own property. It is proposed…

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: [2014] NZHC 2977
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the case of SF Nominees Limited v Ballan, the High Court of New Zealand addressed an application for orders of inspection and testing of retaining walls on land owned by the defendants. The plaintiff, SF Nominees Limited, claims the defendants are required to execute an easement in their favour, while the defendants counterclaim that retaining walls constructed on their land by third parties are defective. The third parties applied for inspection and testing orders under r 9.34 to extract posts from the retaining walls, asserting that the posts already removed by the defendants were not representative of the entire structure.

The primary legal issue before the court was whether the third parties should be granted permission to inspect and test the retaining walls further, particularly given the late timing of the application and the potential for property damage. The court had to balance the importance of resolving the factual disputes against the risk of property damage and the need for procedural fairness. The court found that while the application was made late, it was an important step towards resolving the case, and granted the application on specific conditions to mitigate the risk of property damage.

Venning J determined that the inspection should be limited to extracting one post from each of the two walls, specifically from the southern end due to the property's topography. The court imposed conditions requiring the third parties to provide financial security to cover potential damages to both the defendants' and the plaintiff's properties. The court also extended the time for exchanging witness statements to ensure the fixture for February 2015 could be maintained. The costs of the application were to lie where they fell, given the late application and the lack of formal leave.

Orders