South Taranaki District Council v Hana

[2025] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2024-443-63

[2025] NZHC 2303

IN THE MATTER

of recovery of costs incurred acting under s 129 of the Building Act 2004

BETWEEN

SOUTH TARANAKI DISTRICT COUNCIL

Plaintiff

AND

CHARLES SAMUEL HANA and HOROWAI NGAHUIA HANA

Defendants

Hearing	On the Papers
Counsel:	J E Bourke for Plaintiff
Judgment:	14 August 2025

JUDGMENT OF McQUEEN J

[1]    In accordance with r 15.7 of the High Court Rules  2016,  the  plaintiff,  South Taranaki District Council (the Council) has applied for judgment by default against the defendants, Charles Hana and Horowai Hana, for the sum of

$1,011,907.61, and costs and disbursements of $7,019.

Background

[2] In August 2022, a dwelling in Hawera on a property owned by the defendants (the Property) burned down. The following day compliance officers from the Council inspected the remains of the dwelling on the Property and issued a Dangerous Building Notice (under s 121 of the Building Act 2004) to the defendants requiring removal of the fire debris.

SOUTH TARANAKI DISTRICT COUNCIL v HANA and HANA [2025] NZHC 2303 [14 August 2025]

[3]    The Council became aware that the fire debris had spread to neighbouring residential properties. The Council engaged Total Services 1998 Limited to remove debris from neighbouring properties. A suppressant spray was also applied to the fire debris on the Property to prevent further material from spreading as a result of the wind.

[4]    Samples of the fire debris were collected for testing from the areas surrounding the Property by the Council. Those samples revealed that chrysotile (white asbestos) organic fibres were present.

[5]    In November 2022, the Council was advised by neighbouring property owners that the fire debris was continuing to spread from the Property. The Council officers collected further samples of the fire debris in the surrounding areas on 29 November 2022. Those tests revealed that chrysotile (white asbestos) organic fibres were present.

[6]    The Council attempted to engage with the defendants to have the remains of the dwelling demolished and the Property cleaned up and decontaminated of asbestos. In January 2023, the defendants advised the Council that they proposed to clear the site by engaging a team of volunteers to come and manually remove the fire debris and asbestos-containing materials.

[7]    In March 2023, the Council engaged BTW Company Limited to prepare an asbestos demolition report. That report confirmed the presence of asbestos containing material at the Property, significant potential for asbestos fibre release within the Property and that the presence of asbestos-containing material on the Property posed a risk of injury. On 15 March 2023, officers from the Council met with the defendants to share the findings of the report. The defendants advised the Council they would let them know by 17 March 2023 what action was going to be taken in order to remediate the Property moving forward. No contact by the defendants to the Council was made on or by 17 March 2023.

[8] On 22 March 2023 the Chief Executive Officer of the Council issued a warrant to avoid immediate danger, pursuant to s 129 of the Building Act.

[9]    On 29 March 2023 the Council engaged Collingwood Civil Limited to carry out the demolition and site remediation works, who in turn sub-contracted the demolition works to Nikau Demolition Limited. Remediation works commenced at the Property on 3 April 2023. This involved the removal of the fire-damaged debris on the Property and then an initial soil scrape to remove asbestos contamination. On 4 May 2023, after this initial work was completed, further testing revealed that eight out of 10 soil samples still tested positive for the presence of asbestos.

[10]   OHS Safe Assist Limited recommended a further soil scrape at the Property to achieve  contamination  clearance.  This  was  completed.   On   17 May   2023   OHS Safe Assist Limited provided a clearance certificate indicating the Property did not pose a risk to health and safety from exposure to asbestos.

[11]The costs of all asbestos-related reports, testing and contractors, in the sum of

$1,037,963.45, have to date been paid by the Council.

[12] On 13 December 2023, the Council applied to the District Court at Hawera for confirmation of the warrant issued by the Chief Executive Officer of the Council, pursuant to s 130 of the Building Act. On 29 January 2024, the District Court confirmed the warrant issued and awarded costs to the Council on a category 2B basis.

The Council’s statement of claim

[13]   On 11 October 2024, the Council served on the defendants a statement of claim, notice of proceeding and initial disclosure, all dated 17 September 2024.

[14]   The statement of claim pleads that costs incurred by the Council in taking action pursuant to the warrant issued by the Chief Executive Officer may be recovered from the owners of the Property, being the defendants. The Council have tried to engage with the defendants on several occasions between March and July 2024 in order to make demand of the costs incurred and to discuss any potential payment arrangement proposals the defendants wished to advance. The defendants have not made themselves available to attend any meeting for this purpose.

[15]   As no acceptable payment or security arrangement has been reached between the Council and the defendants, the Council seeks to recover the costs incurred in removing the danger from the Property. The statement of claim as drafted seeks judgment in the sum of $1,037,963.45, the costs of and incidental to the proceedings on a category 2B basis and any further order or relief as the Court determines appropriate.

The Council’s application for default judgment

[16]   The notice of proceeding required the defendants to file a statement of defence within 25 working days of service of the notice. The defendants have not filed a statement of defence. Accordingly, on 25 November 2024, the Council applied for judgment by default in accordance with r 15.7 of the High Court Rules. The Council also filed a memorandum as to costs ($5,019) and disbursements ($2,000) in the sum of $7,019.

[17] The matter was brought before Gwyn J, as Duty Judge, for consideration. In a minute dated 2 December 2024, Gwyn J noted that the amount for which the Council seeks judgment is the amount incurred by the Council acting in accordance with s 129 of the Building Act to remove a dwelling and undertake site remediation work on the defendants’ property. Her Honour said that s 129(3) of the Building Act appeared to create a statutory debt in this situation. However, Gwyn J indicated it was not clear whether the amount claimed appropriately fell into the definition of “liquidated demand” in r 15.7 of the High Court Rules. The Judge directed that the Council file a memorandum addressing whether the debt could be characterised as a sum “quantified in, or can be precisely calculated on the basis of, or by reference to, an enactment relied on by the plaintiff” (r 15.7(5)(ab)), or as a “reasonable price for

… services rendered” (r 15.7(5)(c)). If the latter, Gwyn J directed that appropriate affidavit evidence would be required to prove that the amount claimed by the Council is “a reasonable price”.

[18]   On 8 August 2025, counsel for the Council filed a memorandum addressing the characterisation of the debt under r 15.7, alongside an affidavit and an amended application for judgment by default.

[19]   The Council explains in its memorandum that following Gwyn J’s minute, the Council engaged an independent quantity surveyor to review the costs incurred and the amount sought by the Council in relation to site remediation. The quantity surveyor provided an expert opinion that the reasonable costs would be $1,011,907.61. Therefore, the Council filed the amended application for judgment by default, seeking judgment in the sum of $1,011,907.61, rather than $1,037,963.45 as originally claimed. The Council has also reviewed the costs claimed and now only seeks costs on a category 2A basis.

[20]   The Planning and Development Manager for the Council has provided an affidavit dated 29 July 2025. The affidavit explains the process undertaken by the Council and exhibits the quantity surveyor’s report as well as the invoices the Council received for the costs of all asbestos related reports, testing and contractors.

Analysis

[21]   A liquidated demand is defined, relevantly, as a sum that is a reasonable price for goods supplied or services rendered (when no contract quantifies the price).1

[22] Section 129(1) of the Building Act applies if a building is likely to pose immediate danger to the safety of people in terms of s 121, in that in the ordinary course of events the building is likely to cause injury or death to any persons in it or to persons on other property, or damage to other property. Section 129(2) states that the Chief Executive of a territorial authority may, by warrant issued under their signature, cause any action to be taken that is necessary in their judgement to remove that danger. Subsection (3) provides that if the territorial authority takes action in that manner, the owner of the building is liable for the costs of that action, the territorial authority may recover those costs from the owner and the amount recoverable becomes a charge on the land.

[23]   The Council, by warrant issued by the Chief Executive, contracted parties to remove the danger of the asbestos and fire debris from the Property. The Council has covered all costs associated to remove that danger and is now entitled to recover that

1      High Court Rules 2016, r 15.7(5)(c).

from the defendants, as owners of the Property. As mentioned, a quantity surveyor has assessed what the reasonable costs of those actions were and provided a report.

[24] I am satisfied that the amount claimed by the Council is a “liquidated demand” for the purposes of r 15.7. In terms of r 15.7(5)(c), the amount claimed is a reasonable price, based on the quantity surveyor’s assessment and report, for services rendered, namely the removal of a dwelling and site remediation work on the Property pursuant to s 129 of the Building Act.

[25]   Rule 15.7 of the High Court Rules provides that when a plaintiff claims payment of a liquidated demand and no statement of defence has been filed within the number of working days required by the notice of proceeding, the plaintiff may seal judgment for that sum, plus interest, costs and disbursements.

[26]   Rule 15.4 states that an affidavit of service of the statement of claim and notice of proceeding must be filed before a judgment by default can be sealed.

[27]I am satisfied that the requirements of r 15.7(1) and r 15.4 have been met:

(a)By affidavit dated 5 November 2024, William Stuart swore that on   11 October 2024 he served the statement of claim, notice of proceeding, and initial disclosure all dated 17 September 2024 on the defendants by personally handing those documents to the defendants.

(b)The defendants have not filed a statement of defence within 25 working days as required by the notice of proceeding.

[28]   The Council is entitled to default judgment against the defendants for the liquidated demand of $1,011,907.61.

[29]No interest is sought by the Council as provided for in r 15.7(1)(a).

[30]   A schedule of the Council’s costs and disbursements was provided by way of memorandum dated 25 November 2024, as required by r 15.7(2). The Council, having

succeeded in its application, is entitled to costs on a 2A basis of $5,019 and disbursements of $2,000 as set out in the memorandum.

Result

[31]    The plaintiff, South Taranaki District Council, is entitled to default judgment against the defendants, Charles Hana and Horowai Hana, under r 15.7(3) of  the  High Court Rules 2016 for the sum of $1,011,907.61, and costs and disbursements of

$7,019.

[32]   I direct the Council to file a draft judgment by default in the terms ordered above for sealing.

McQueen J

Solicitors:

C&M Legal, New Plymouth for Plaintiff