Tourism Holdings Ltd v Thorburn Consultants (NZ) Ltd HC Auckland CIV 2009-404-8051
[2010] NZHC 2156
•3 December 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-008051
BETWEEN TOURISM HOLDINGS LTD Plaintiff
ANDTHORBURN CONSULTANTS (NZ) LTD First Defendant
ANDAPG THOMPSON LTD Second Defendant
ANDAIR ACTION INSTALLATION LTD Third Defendant
ANDPLASFAB INSTALLATIONS 1977 LTD Fourth Defendant
Hearing: 29 November 2010
Appearances: P J Napier and N J Pye for First Defendant
R Hargreaves for Third Defendant
Judgment: 3 December 2010 at 5:00 pm
JUDGMENT OF ASSOCIATE JUDGE BELL
This judgment was delivered by me on 3 December 2010 at 5:00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
Solicitors:
Keegan Alexander, PO Box 999, Auckland
Fortune Manning, PO Box 4139, Auckland
TOURISM HOLDINGS LTD V THORBURN CONSULTANTS (NZ) LTD AND ORS HC AK CIV-2009-404-
008051 3 December 2010
[1] On 12 June 2006 there was a power cut in Auckland. Watercare Services’ pump station in the Orakei Domain failed. Along Tamaki Drive at Okahu Point is the site of the old pumping station from which the city’s wastewater used to be discharged into the Waitemata Harbour. The sewage holding tanks are still there. Most of them are now occupied by Kelly Tarlton’s Underwater World, a well-known tourist attraction. But one of the old tanks is still used as an overflow tank for the sewerage system. When the pump station in the Orakei Domain failed on 12 June
2006, wastewater flowed into the tank. In the tanks was a duct serving the ventilation system of Kelly Tarlton’s Underwater World. In early 2005, modifications had been made to the ventilation piping. PVC ducting to provide an airflow bypass had been grafted onto the original concrete asbestos pipe.
[2] Tourism Holdings Ltd was then the operator ofKelly Tarlton’s Underwater World. I will refer to it as Kelly Tarltons. It says that the PVC ducting failed in the power cut and broke free from its connection to the existing ventilation piping. Sewage and seawater flowed into Kelly Tarltons causing extensive property damage and business interruption losses. It says these losses amount to $2,927,726, and it claims that sum as damages in this proceeding.
[3] The modifications to the ventilation piping were carried out towards the end of stage 2 of a redevelopment of the Kelly Tarlton premises. The head contractor was Hawkins Construction. Thorburn Consultants (NZ) Ltd, the first defendant, was the lead consultant. It is a civil structural and environmental engineering practice, but one of its directors, Craig Thorburn, is a marine biologist and had once worked as curator at Kelly Tarltons. Thorburn Consultants had come up with the initial concept for the redevelopoment. On the redevelopment it was the project manager and civil and structural engineer.
[4] APG Thompson Ltd, the second defendant, is a mechanical engineering practice and was the mechanical engineering consultant on the redevelopment.
[5] Air Action Installation Ltd, the third defendant, is a heating, ventilation and air conditioning contractor. Initially, it worked as sub-contractor to Hawkins
Construction. It installed the PVC ventilation pipe. When it did that, it contracted directly with Kelly Tarlton’s Underwater World.
[6] Plasfab Installations 1977 Ltd, the fourth defendant, carries on business as plastic fabricators. It supplied the PVC piping.
[7] Kelly Tarlton’s statement of claim says that the new ventilation pipe installed by Air Action Installation was made of lightweight Rib-Loc PVC piping, was supported by two steel wire hangers suspended from the roof, and was glued to the old rigid pipe. It says that this installation was defective in the following respects:
a) A design prepared by Air Action Installation had insufficient details of pipe materials, support and connection to the existing ventilation pipes;
b)The new ventilation pipe and supports were not designed adequately to withstand the lateral and vertical forces to which the pipe would have been subjected in the chamber when water levels were high or in surging water conditions, and to withstand damage from floating debris;
c) The Rib-Loc PVC pipe lacked the strength and rigidity required for the conditions in the chamber.
d)The wire hangers used to support the new ventilation pipe did not provide the support required for the conditions in the chamber; and
e) The connections between the new ventilation pipe and existing ventilation pipes were not of the strength required for the conditions in the chamber.
[8] Kelly Tarlton sues Thorburn Consultants and APG Thompson Ltd in contract and in tort. The alleged breaches of duty for all four causes of action are the same:
a) In each case, the consultant knew the chamber was an operational sewer and therefore knew that the new ventilation pipe needed to be designed and installed to withstand the lateral and vertical forces to which the pipe would be subjected in the chamber when the water levels were high or in surging conditions, and to withstand damage from floating debris;
b)The Air Action Installation design had insufficient details of pipe materials, support and connection with existing ventilation pipes for the consultant to satisfy itself that the repair work to be carried out would meet the required standard, and the consultant therefore ought not to have approved the design;
c) The consultant knew or ought to have known that the design for the ventilation repair work should have been submitted to Watercare Services Ltd for its approval of the work to be done but failed to do so;
d)The consultant failed to ensure that the new ventilation pipe was installed in a good and workmanlike manner; and
e) The ventilation system repair and the new pipe were defective in the respects set out in paragraph [7] above.
[9] Kelly Tarlton sues Air Action Installation Ltd in contract and in tort and sues Plasfab Installations 1977 Ltd in tort alone. The breaches of duty alleged against both of them are the same, except for (c):
a) Failing correctly to identify the operating conditions in the chamber to which the ventilation pipe would be subjected;
b)Not having identified the operating conditions in the chamber, they ought to have designed and installed a new pipe to the same standard and strength as the existing pipes, but did not;
c) Air Action Installation’s design was inadequate;
d)They ought to have notified Watercare of the proposed repair work and obtained Watercare’s approval before starting work; and
e) The ventilation pipe was defective.
[10] Thorburn Consultants has tried to have itself removed from the proceeding. On 8 February 2010, it applied for an order for summary judgment against Kelly Tarlton. It served that application only on Kelly Tarlton and did not serve the other parties to the proceeding. Kelly Tarlton did not oppose the application for summary judgment. Instead, it agreed that judgment could be entered for Thorburn Consultants against it on the summary judgment application, with costs lying where they fell. Venning J made an order to that effect on 14 April 2010.
[11] In the meantime, APG Thompson and Air Action Installation served cross- notices on Thorburn Consultants.
[12] The position after Venning J made the order for summary judgment against Kelly Tarlton was that Thorburn Consultants was no longer a defendant to the claim by Kelly Tarlton, but that APG Thompson and Air Action Installation still had unresolved cross-claims against it. Procedurally, it does not make sense that Thorburn Consultants can be a defendant in a proceeding, when the plaintiff is no longer suing it, but yet it is still subject to cross-claims by other defendants.
[13] Thorburn Consultants’ response to this problem was to apply for summary judgment against APG Thompson and Air Action Installation. APG Thompson did not resist. It discontinued its cross-claim against Thorburn Consultants, with costs lying where they fell. Associate Judge Doogue approved the discontinuance in a judgment of 23 June 2010.
[14] Air Action Installation opposes the summary judgment application against it. That application is the subject of this decision.
[15] Thorburn Consultants has applied for leave under r 12.4(3). That says:
An application by a defendant may be made either at the time the statement of defence is served on the plaintiff or later with the leave of the Court.
[16] Thorburn Consultants filed a statement of defence to Air Action Installation’s cross-claim on 10 February 2010. The present application was filed on 24 May
2010. It is out of time under r 12.4(3).
[17] The rule contemplates an application by a defendant for summary judgment against the plaintiff. However, this is a case where a defendant who has already obtained summary judgment against the plaintiff now applies for summary judgment against other defendants.
[18] There is a question whether a defendant can apply for summary judgment against another defendant. In Lee & Ors v North Shore City Council and Rundstrom HC Auckland CIV-404-2091 12 April 2010, I said at [7] and [8]:
[7] … whereas r 12.2(2) of the High Court Rules allows a defendant to apply for summary judgment against a plaintiff, the rules do not expressly provide for one defendant to apply for summary judgment against another defendant. Had the second defendants been joined as a third party, they could have applied for summary judgment against the party joining them, as r 4.7(2) gives a third, fourth and subsequent parties the same rights as a defendant. Those rights include the right to apply for summary judgment.
[8] Initially, I considered that the right of a defendant to bring a summary judgment application against another defendant might be allowed by resort to r 1.6 of the High Court Rules. On further consideration, the omission of summary judgment applications between defendants appears to be deliberate. A successful summary judgment application enters judgment against the unsuccessful party and that judgment operates as an estoppel. Under r 4.22, the court retains the power to give a judgment and relief as between defendants, even in the absence of a cross-notice. As the court retains this power to apportion liabilities between defendants, even in the absence of pleaded cross-claims, the entry of summary judgment by one defendant against the other before the court has made its determination of liabilities between the defendants is pre-emptive. Accordingly, the second defendants’ application for summary judgment can at best achieve no more than a strike out of the first defendant’s cross notice.
[19] That case went on to consider the summary judgment application as a strike- out application.
[20] This case is different. The reasons I gave in the Lee decision for not allowing a summary judgment application do not apply in this case, because the Court has
already given Thorburn Consultants summary judgment against Kelly Tarlton. Therefore the Court cannot apportion liabilities under any judgment that Kelly Tarlton might obtain against both Thorburn Consultants and some other party.
[21] Because Thorburn Consultants is no longer sued by the plaintiff, but is the subject of claims by other defendants, it makes more sense to consider it as being in the position of a third party. The rights of a third party under r 4.7(2) include the right to apply for summary judgment against the defendant who has joined it. On that basis, Thorburn Consultants can apply for summary judgment against the defendants who have made claims against it.
[22] The delay in filing the application for summary judgment has delayed the proceeding generally. It was unnecessary delay. What Thorburn Consultants ought to have done is serve its initial application for summary judgment against Kelly Tarlton on all parties, so that all parties could be heard on that application. The piecemeal approach of applying first against Kelly Tarlton, and second against APG Thompson and Air Action Installation has delayed progress in the proceeding generally. While other parties have got on with the proceeding and made discovery, Thorburn Consultants has tried to get out of the proceeding instead of attending to interlocutory matters.
[23] The rules contemplate that defendants’ applications for summary judgment should be made promptly so that early decisions can be made whether a defendant is in or out of a proceeding. Thorburn Consultants’ delay counts against it.
[24] Even though its position is not deserving, leave ought to be granted. The reason for this is the untidiness of the present procedural position. That can be remedied by considering and ruling on the summary judgment application, and then giving any further consequential directions for the conduct of the case.
[25] In Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2
NZLR 298 (CA), the Court of Appeal said:
[58] The applications for summary judgment were made under R 136(2)
of the High Court Rules which permits the Court to give judgment against
the plaintiff “if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed”.
[59] Since R 136(2) permits summary judgment only where a defendant satisfies the Court that the plaintiff cannot succeed on any of its causes of action, the procedure is not directly equivalent to the plaintiff’s summary judgment provided by R 136(1).
[60] Where a claim is untenable on the pleadings as a matter of law, it will not usually be necessary to have recourse to the summary judgment procedure because a defendant can apply to strike out the claim under R 186. Rather R 136(2) permits a defendant who has a clear answer to the plaintiff which cannot be contradicted to put up the evidence which constitutes the answer so that the proceedings can be summarily dismissed. The difference between an application to strike out the claim and summary judgment is that strike-out is usually determined on the pleadings alone whereas summary judgment requires evidence. Summary judgment is a judgment between the parties on the dispute which operates as issue estoppel, whereas if a pleading is struck out as untenable as a matter of law the plaintiff is not precluded from bringing a further properly constituted claim.
[61] The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually summary judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim. Examples, cited in McGechan on Procedure at HR 136.09A, are where the wrong party has proceeded or where the claim is clearly met by qualified privilege.
[62] Application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence. Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues. Although a legal point may be as well decided on summary judgment application as at trial if sufficiently clear (Pemberton v Chappell [1987] 1 NZLR 1), novel or developing points of law may require the context provided by trial to provide the Court with sufficient perspective.
[63] Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff’s claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff’s case prematurely before completion of discovery or other interlocutory steps and before the plaintiff’s evidence can reasonably be assembled.
[64] The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of his own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the
day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.
[26] Air Action Installation’s relevant pleading in its cross-claim says:
[4] If the third defendant is found liable to the plaintiff (which is denied), the first, second and fourth defendants inclusive (and each of them) are liable as joint or concurrent tortfeasors with the third defendant and are liable to contribute to any loss for which the third defendant may be liable or suffer in these proceedings, for the reasons set out in the plaintiff’s statement of claim.
[5] The third defendant is entitled to a contribution from the first, second and fourth defendants inclusive (and each of them) pursuant to s 17.1(c) of the Law Reform Act 1936 and the prayer for relief seeks indemnity or contribution.
[27] Air Action Installation does not allege that Thorburn Consultants owed it a duty of care. Instead, its claim is against Thorburn Consultants as a concurrent tortfeasor. It alleges that if it is proved to be a tortfeasor, then it is entitled to seek contribution under s 17(1)(c) of the Law Reform Act 1936 because it says that Thorburn Consultant is another tortfeasor causing the same loss. Air Action Installation’s pleading adopts Kelly Tarlton’s allegations against Thorburn Consultants.
[28] While Kelly Tarlton and APG Thompson did not oppose Thorburn Consultants’ summary judgment applications, that does not stand in the way of Air Action Installation maintaining its opposition to the summary judgment application. It is not bound by the actions of other parties. It is entitled to exercise its own independent judgment whether to oppose the summary judgment application.
[29] It is necessary to consider Thorburn Consultants’ potential liability in tort only. It is not necessary to consider claims against it in contract or, for that matter, claims against Air Action Installation in contract. The allegations of breach of contract raise the same matters as the allegations of breach of duty in tort against both Thorburn Consultants and Air Action Installation. A decision whether Air Action Installation’s cross-notice based on allegations of tort liability can remain is sufficient to decide the outcome of the application. If Thorburn Consultants is
arguably liable in tort, that will be sufficient to allow the cross-claim to run. Correspondingly, if Thorburn Consultants faces no liability in tort, then it will not face any liability in contract either. This means that it is not necessary to consider whether Air Action Installation could require Thorburn Consultants to stay in the proceeding as a third party on a claim of equitable contribution as a concurrent contract breaker/wrongdoer.
[30] In considering Thorburn Consultants’ potential liability in tort, it is appropriate to consider not only its potential liability to Kelly Tarlton, but also whether it might be liable in tort to Air Action Installation. A defendant’s summary judgment application should not be granted, if the claim against it can be amended successfully.
[31] Thorburn Consultants’ potential exposure to liability in tort arises over a brief period. Air Action Installation had identified a problem with air pressure in the ventilation for the toilet block when carrying out checks in January 2005. It told Hawkins Construction, and Thorburn Consultants found out about it at the same time. There is nothing to suggest that Thorburn was on notice about the matter before then. After testing, it was established that the cause of the drop in pressure in the air conditioning was a fault in the ventilation ducting in the sewage overflow chamber at the north end of Kelly Tarlton’s Underwater World, well away from the site of the redevelopment works. Craig Thorborn, a director of Thorburn Consultants and engineer’s representative, arranged a visit by himself, Kelly Tarlton’s maintenance manager, a representative of Hawkins Construction, Tony Thompson, the mechanical services engineer, and Mr Howley of Air Action Installation. All but Mr Thompson went into the overflow chamber. Mr Thorburn photographed the existing ventilation piping. There were discussions about remedial options. What was discussed is in contention.
[32] Shortly after that visit, Mr Thorburn asked Kelly Tarlton whether it wanted Thorburn Consultants to project manage the changes to the ventilation ducting. Kelly Tarlton declined. It said that work would be done as part of its maintenance budget. Hawkins Construction and Thorburn Consultants were not to be involved. Kelly Tarlton would deal directly with the mechanical engineer and with Air Action
Installation. Thorburn Consultants is on safe ground in saying that it did not have any responsibility for the installation of the PVC piping after Kelly Tarlton told it that it would not be involved.
[33] Thorburn Consultants are not ventilation and air conditioning specialists. Mr Craig Thorburn had been a curator at Kelly Tarlton Underwater World. Moreover, he knew about the Watercare Services Ltd sewer overflow. During the redevelopment works, he had obtained a works approval from Watercare Services Ltd to allow work on the overflow sewer. The sewer detail was described as “1.8 x
1.5 rectangular sewer overflow, within Kelly Tarlton premises”. The requirements of the approval included:
2)For work inside the sewer a “confined space certified” contractor shall be employed, e.g. Tunnel & Civil Ltd.
3)The contractor working within the sewer should be aware of, and plan for the following:
The sewer is an emergency overflow for the Orakei sewage pumping station and would likely operate during a power failure.
The conduit is subject to tidal fluctuations. The sewer entry plan needs to include –
Evacuation procedures
Communication with Watercare Control Unit
Safety supervisor phone contact number.
7)Please ensure your contractor/subcontractor complies with these specific requirements.
[34] Mr Howley, Air Action Installation’s manager, has described the site visit to the overflow chamber on 3 February 2005. His account differs from Mr Thorburn’s. Both are plausible. In a summary judgment application I cannot determine which is correct. I assume that at trial Mr Howley’s may be accepted.
[35] Mr Howley says that those who went into the chamber did not wear breathing apparatus or protective clothing other than gum boots and overalls. The chamber did not have a sewage smell and there was nothing to indicate that it was still connected to a sewage overflow system. He says that he asked Kelly Tarlton’s maintenance
manager what was the highest the water came to in the chamber. The maintenance manager indicated a high tide mark on the chamber. Mr Howley says the existing asbestos and concrete horizontal pipe was above that high tide mark. Craig Thorburn took photographs which were later distributed. Mr Howley says that when they returned to the surface, there was discussion and agreement that the ventilation/airflow problem could be solved by the installation of PVC ducting airflow bypass grafted on to the original concrete asbestos pipe. He says that Mr Thorburn was involved and contributed to the discussions about the design installation of the agreed solution. He also says that Mr Thorburn did not tell him or anyone else at the site visit on 3 February 2005 of the Watercare requirements when undertaking work in the chamber. Mr Howley is clear that he did not know about the Watercare requirements.
[36] These questions arise:
a) Was Mr Thorburn under a duty to tell Mr Howley that this chamber where the ventilation ducting was to be changed was used as a sewage overflow tank?
b) If so, did he breach that duty Mr Howley?
c) If he had told Mr Howley, would that have led to a change in the design for the by-pass ducting in the chamber?
[37] On the duty question, there is an argument that Mr Thorburn could keep that information to himself. Even though he was project manager, he did not owe a duty to contractors to alert them to the risk of the ventilation ducting being submerged in effluent. The argument originates in old cases holding that contractors have to take
the site as they find it.1 It would refer to authorities such as the Court of Appeal’s
decision in R M Turton & Co Ltd (In Liquidation) v Kerslake & Partners [2000] 3
NZLR 406 (CA) which emphasises that in construction matters claims should follow the contractual chain. In that case, a mechanical services engineer who had given a
1 See, for example, Robert Smellie Building Contracts and Practice in New Zealand (2nd ed, Butterworths, Wellington, 1979) at 91.
faulty specification was held not to owe a duty of care to a head contractor, when the heating system specified by the engineer proved incapable of performing to the specified standards. There the majority in the Court of Appeal said at [38]:
We also have a measure of real concern in endorsing what could be construed as a general principle, namely that in a building contract situation, an architect or engineer will be liable in tort to contractors or subcontractors for negligence in design or specification.
[38] But there are arguments the other way. Thorburn Consultants was project manager at the time of the site visit on 3 February 2005. It is arguable that a project manager has a responsibility to share with contractors and sub-contractors on site information about unusual conditions that might arise. Taking part in a site visit to address the work to be done on the ducting, when design options are discussed, may trigger a requirement for the project manager to tell the contractors that the ducting may be submerged in effluent.
[39] In R M Turton & Co Ltd (In Liquidation) v Kerslake & Partners the majority in the Court of Appeal were at pains to emphasise that their decision in that case turned on the particular facts and the particular terms of the contract in that case: see [7]:
The existence, or non-existence, of a duty will always be fact dependent and although general criteria which have emerged are to be applied, they are not absolutes – they are neither conclusive nor exclusive.
[40] Cases in which the courts have denied a duty of care, such as R M Turton have involved economic loss only. This case involves actual physical damage, not just economic loss. On this point, in Rolls Royce New Zealand v Carter Holt Harvey Ltd [2005] 1 NZLR 324, a decision where contractual terms were held to exclude duties of care in tort, the Court left in claims related to physical damage and a Hedley Byrne claim – [130].
[41] In Westpac Banking Corporation v Kembla, the Court of Appeal was at pains to emphasise that summary judgment should be given only in clear cases. The assessment is not to be made on a fine balance of the available evidence. This is not such a clear case that it can be said conclusively at this stage that Thorburn Consultants did not owe a duty of care to disclose to Air Action Installation that the
ventilation piping might be submerged in effluent. That is a determination that can only be made at trial after all the evidence has been heard.
[42] On the standard of care, Thorburn Consultants’ responsibility as project manager on 3 February 2005 is relevant. The sewage overflow tank was to be a place of work for Air Action Installation. Watercare Services’ consent to work there was required under s 40 of the Auckland Metropolitan Drainage Act 1960, as Mr Thorburn knew. Thorburn Consultants was carrying out Kelly Tarlton’s
responsibility under the health and safety legislation2 to ensure that all practicable
steps are taken to ensure that no hazard harms contractors and their employees. Telling Air Action Installation about the need to obtain Watercare Services’ consent and to comply with Watercare Services’ safety requirements is arguably a practicable step that Thorburn Consultants could have taken. Mr Thorburn does not say in his reply affidavit that he did tell Air Action Installation that the chamber was a sewage overflow tank, that the ventilation pipe could be submerged in effluent or that Watercare Services’ consent was required for work in the chamber.
[43] Thorburn Consultants submitted that even if it had told Air Action Installation about these matters, there is no evidence that it would have made any difference. It would have the Court accept that Air Action Installation would still have adopted the same design, even if it had known that the chamber was used as an overflow sewage tank. That is essentially a trial question of fact which cannot be resolved now.
[44] I cannot say conclusively that Thorburn Consultants does not have any liability in tort.
[45] Air Action Installation contended for a wider duty in tort. It alleged that Thorburn Consultants was involved in the discussions and that it approved the design. Those wider allegations are not sustainable. Any liability of Thorburn Consultants will turn on a careful examination of what was said and done while Thorburn Consultants, as project manager, was dealing directly with the site conditions for the repair work on the ventilation piping. It was not a ventilation
2 S 16 and 18 Health and Safety in Employment Act 1992
expert itself. It did not have the expertise to, and was not required to approve ventilation designs or ventilation work.
[46] Any liability of Thorburn Consultants in tort may arise more directly as a duty of care owed to Air Action Installation, rather than as a duty of care to Kelly Tarlton. After all, Kelly Tarlton is just as likely to have known of the site conditions as Thorburn Consultants, and can hardly complain of not being informed.
[47] I make these orders:
a) I dismiss the application for summary judgment against Air Action
Installation Ltd;
b)Thorburn Consultants (NZ) Ltd remains in the proceeding as a third party joined by Air Action Installation Ltd;
c) Air Action Installation Ltd is to file and serve an amended statement of claim against Thorburn Consultants (NZ) Ltd within 10 working days;
d)Thorburn Consultants (NZ) Ltd is to file and serve a statement of defence by 4 February 2011;
e) Thorburn Consultants (NZ) Ltd is to file and serve its list of documents by 4 February 2011;
f) The case management conference for 9 February 2011 is confirmed;
g) Costs on the summary judgment application are reserved.
R M Bell
Associate Judge
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