Swedish Torp Limited v Standing - [2017] NZHC 460

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2799 [2017] NZHC 460

BETWEEN
SWEDISH TORP LIMITED

Appellant

AND

ALAN STANDING First Respondent

KEITH STANDING Second Respondent

Hearing: 22 February 2017

Appearances:

E St John and S P Maloney for the Appellant
P Amaranathan for the Respondents

Judgment:

16 March 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 16 March 2017 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
.
Registrar/Deputy Registrar

Date: ………………………

Counsel/Solicitors:
E St John, Barrister, Auckland
S P Maloney, Barrister, Auckland
Stafford Klaassen Solicitors, Greenwoods Corner, Auckland (B Stafford) P Amaranathan, Rice Craig, Papakura

SWEDISH TORP LTD v STANDING [2017] NZHC 460 [16 March 2017]

Introduction

[1] Swedish Torp Limited (STL) appeals from a decision of the District Court striking out its causes of action in negligence against the first and second respondents (Messrs Standing).1

[2] Such decision was based on the stated existence of an issue estoppel by reason of a prior determination of what the District Court held to be “the same issues by a judicial tribunal”.2

[3] The relevant ‘tribunal’ for the purposes of the District Court’s decision was an investigator appointed under s 91 of the Plumbers, Gasfitters and Drainlayers Act 2006 (the Act).

[4] The central issue raised in the appeal is whether the doctrine of issue estoppel can apply to the findings of such an investigator having regard to the relevant statutory framework.

Background

[5] In March 2008, STL engaged the first respondent to undertake drainage works associated with the relocation of a house onto a block basement at its property in Silverton Avenue, Wai O Taiki Bay, Auckland. Because the development was to occur over a public sewer main, replacement of the mains with a vitaclay pipe was required. The second respondent, who is the first respondent’s son, assisted with the works.

[6] After completion of the contract it is alleged that the property flooded on three separate occasions with raw sewage contamination.

[7] The claim is for a modest amount comprising various uninsured costs and insurance excesses. It was originally commenced in the Disputes Tribunal but
transferred to the District Court at the direction of the Tribunal.

1 Swedish Torp Ltd v Standing [2016] NZDC 19484.

[8] Before such proceedings were commenced, however, STL invoked procedures available under the Act to make a complaint to the Plumbers, Gasfitters and Drainlayers Board. It alleged that Messrs Standing had committed a disciplinary offence by carrying out sanitary plumbing or drainlaying work which was, in terms of s 89 of the Act, negligent, incompetent or contrary to relevant legislation. Its complaint was made on 13 September 2013.

[9] On receipt of that complaint the Registrar of the Board appointed Mr F C Jones as an investigator.3 Section 92 of the Act provides that such investigator must determine whether the complaint should be considered by the Board and report his/her findings to the Board.

[10] Mr Jones reported to the Board on 4…

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 Swedish Torp Limited v Standing

Details

AGLC: Swedish Torp Limited v Standing [2017] NZHC 460
Case: [2017] NZHC 460
Decision Date: 16 March 2017

CaseChat Overview and Summary

Swedish Torp Limited (STL) brought an action against Alan Standing and Keith Standing for negligence in relation to works carried out at STL’s property in Silverton Avenue, Wai O Taiki Bay, Auckland. The respondents alleged that the property flooded on three separate occasions with raw sewage contamination. STL engaged the first respondent to undertake drainage works associated with the relocation of a house onto a block basement at its property. After completion of the contract, it is alleged that the property flooded on three separate occasions with raw sewage contamination. The claim is for a modest amount comprising various uninsured costs and insurance excesses. Before the proceedings were commenced, STL invoked procedures available under the Plumbers, Gasfitters and Drainlayers Act 2006 (the Act) to make a complaint to the Plumbers, Gasfitters and Drainlayers Board alleging that Messrs Standing had committed a disciplinary offence by carrying out sanitary plumbing or drainlaying work which was, in terms of s 89 of the Act, negligent, incompetent or contrary to relevant legislation. The Registrar of the Board appointed an investigator who reported to the Board that no fault could be attributed to the work of the Standings. STL took issue with the determination and asked the investigator to reopen his investigation. In his final report the investigator concluded that Messrs Standing were not at fault in any respect. The District Court found against STL on the basis that the investigator’s findings amounted to an adjudication between the parties and that the plaintiff had not identified any issue requiring determination in the District Court proceedings which had not otherwise been dealt with by the investigator in his two reports. The District Court struck the claims out. STL appealed against the District Court’s decision. The appeal was allowed with the result that the plaintiff’s causes of action against the first and second defendants were reinstated. The matter was remitted to the District Court for case management and trial directions. Costs were awarded on the part of the appellant to be calculated on a 2B basis.

Orders