Weaver v HML Nominees Limited - [2016] NZHC 476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3130 [2016] NZHC 476

BETWEEN
ANN-LOUISE EVELYN CHANTAL

WEAVER AND GRAHAM WILLIAM ANDERSON

Plaintiff

AND

HML NOMINEES LIMITED First Defendant

HELEN MARTHA MOORE Second Defendant

Continued ...

Hearing: 8 December 2015

Counsel:

M C Frogley for plaintiffs
D J Barr for third defendant

Judgment:

18 March 2016

JUDGMENT OF KATZ J

This judgment was delivered by me on 18 March 2016 at 4:45pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Rainey Law, Auckland LeeSalmonLong, Auckland Simpson Grierson, Auckland Wilson Harle, Auckland
Rice & Co, Auckland

Counsel: D R Bigio, Shortland Chambers, Auckland
N J Scampion, Shortland Chambers, Auckland

WEAVER & ANDERSON v HML NOMINEES LIMITED & ORS [2016] NZHC 476 [18 March 2016]

AUCKLAND COUNCIL

Third Defendant

STONESCAPES LIMITED (IN LIQUIDATION)

First Third Party

FLEXCO (NZ) LIMITED

Second Third Party

ASHTON MITCHELL ARCHITECTS LIMITED (DISCONTINUED)

Third Third Party

BUILDING CODE CONSULTANTS LIMITED (DISCONTINUED)

Fourth Third Party

KELVIN LEONARD WALLS (DISCONTINUED)

Fifth Third Party

COOPER ROOFING COMPANY (DISCONTINUED)

Sixth Third Party

FLEXCO (NZ) LIMITED

Seventh Third Party

MOHAN ROOFING SERVICES LIMITED

Eighth Third Party

POINT CONSTRUCTION LIMITED (DISCONTINUED)

Ninth Third Party

STONESCAPES LIMITED (IN LIQUIDATION)

Tenth Third Party

JACKSON CLAPPERTON AND PARTNERS LIMITED (DISCONTINUED)

Eleventh Third Party

Introduction

[1] The plaintiffs, Ann-Louise Weaver and Graham Anderson, suffered loss due to the defective installation of stone cladding on their house in St Mary’s Bay, Auckland.

[2] In my judgment of 28 August 2015 (“Judgment”) I found the previous owner of the property, HML Nominees Limited (“HML”) liable for the costs of remediating the stone cladding, because it had breached vendor warranties in the agreement for sale and purchase of the property. I also found the Council liable for the costs of remediating the stone cladding, because it was negligent in relation to its inspections of the property and the issue of a code compliance certificate.1

[3] The plaintiffs were therefore entitled to seek to recover the costs of remediating the stone cladding (“the stone cladding award”) from either HML or the Council, or both of them, subject only to the requirement that the total sum recovered could not exceed the stone cladding award. Because HML is liable in contract, and the Council in tort, they have no rights of contribution against each other as joint tortfeasors.

[4] The plaintiffs reached a settlement with HML, post judgment, which did not involve any monetary contribution towards the stone cladding award. The plaintiffs then sought to enforce the entirety of the stone cladding award against the Council. The Council submits that the effect of the settlement agreement between the plaintiffs and HML is to satisfy the stone cladding award. As a result, any enforcement of the award against the Council would result in excessive recovery.

[5] The issue I must determine is whether the liability of both HML and the
Council, as concurrent wrongdoers in respect of the same loss, has been discharged by the settlement agreement between HML and the plaintiffs.

1

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: [2016] NZHC 476
Decision Date: 18 March 2016

CaseChat Overview and Summary

In Weaver v HML Nominees Limited, the plaintiffs, Ann-Louise Weaver and Graham Anderson, sought to enforce a judgment award for defective stone cladding on their house against the Auckland Council, after having settled with the previous owner, HML Nominees Limited. The Council argued that the settlement with HML discharged the plaintiffs' claim against it, preventing an excessive recovery. The court had to determine if the settlement with HML discharged the plaintiffs' claim against the Council. The court found that the settlement agreement did not intend to fully satisfy the stone cladding award but rather was a covenant not to sue HML. The agreement expressly reserved the plaintiffs' right to enforce the judgment against the Council. The court held that the settlement did not constitute full satisfaction of the judgment as a whole and did not preclude the plaintiffs from enforcing the stone cladding award against the Council. The court dismissed the Council's application, allowing the plaintiffs to enforce the award against the Council, and awarded the plaintiffs the costs of the application.

Orders