Legal Research
Cases
Weaver v HML Nominees Ltd

Weaver v HML Nominees Ltd

Case [2014] NZHC 2073 29 August 2014

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003130 [2014] NZHC 2073

BETWEEN
ANN-LOUISE EVELYN CHANTEL

WEAVER and GRAHAM WILLIAM ANDERSON

Plaintiffs

AND

HML NOMINEES LIMITED First Defendant

AND

HELEN MARTHA MOORE Second Defendant

AND

AUCKLAND COUNCIL Third Defendant

AND

STONESCAPES LIMITED First Third Party

AND

FLEXCO (NZ) LIMITED Second Third Party

AND

ASHTON MITCHELL ARCHITECTS Third Third Party

AND

BUILDING CODE CONSULTANTS LIMITED

Fourth Third Party

AND

KELVIN LEONARD WALLS Fifth Third Party

AND

COOPER ROOFING COMPANY LIMITED

Sixth Third Party

AND

FLEXCO (NZ) LIMITED Seventh Third Party

AND

MOHAN ROOFING SERVICES LIMITED

Eighth Third Party

AND

POINT CONSTRUCTION LIMITED Ninth Third Party

ANN-LOUISE EVELYN CHANTEL WEAVER and GRAHAM WILLIAM ANDERSON v HML NOMINEES LIMITED [2014] NZHC 2073 [29 August 2014]

AND
STONESCAPES LIMITED

Tenth Third Party

AND

JACKSON CLAPPERTON & PARTNERS LIMITED Eleventh Third Party

Hearing: 2 May 2014

Appearances:

E Telle and S N Parkins for the Fourth and Fifth Third Party
Applicants
D J Barr and S S R Mears for the Third Defendant/Respondent

Judgment:

29 August 2014

JUDGMENT OF ASSOCIATE JUDGE SMITH

Introduction ................................................................................................................................... [1] The Evidence ............................................................................................................................... [15]
Legal principles applicable to strike-out applications and applications by defendants for
summary judgment ...................................................................................................................... [42] Strike-out applications ............................................................................................................. [42] Summary judgment applications ............................................................................................. [45]

The issues in this case ................................................................................................................. [47] Claims against BCCL .............................................................................................................. [47] Claims against Dr Walls .......................................................................................................... [47]

Discussion – applications by BCCL ............................................................................................ [48] Issue 1 No Reliance – application by BCCL for summary judgment on the Council’s negligent mis-statement cause of action .................................................................................................. [49] Issue 2 No loss - application by BCCL for summary judgment on the Council’s negligent mis- statement cause of action ......................................................................................................... [58] Issue 3 No duty of care owed by BCCL to the plaintiffs ......................................................... [60]

Issues 4, 5 and 6: Claims against Dr Walls................................................................................. [85] Issue 5: No duty of care to the plaintiffs .................................................................................... [86] Issue 4 No duty of care to the Council ....................................................................................... [90] Conclusion ................................................................................................................................. [106]

Introduction

[1] On 29 November 2005 the third defendant (the Council) issued a building consent authorising certain remedial works to be carried out on a property in Seymour Street, St. Mary’s Bay, Auckland (the property) then owned by the first defendant (HML). The dwelling on the property had been found to be a leaky home, and the remedial work included complete recladding.

[2] Having carried out a number of inspections as the remedial work progressed, the council issued a Code Compliance certificate (the CCC) for the remedial work on
16 October 2006.

[3] The plaintiffs purchased the property from HML on 16 June 2007, and took possession of the property on 7 September 2007.

[4] Unhappily, the recladding work also turned out to be defective. In or about

2009 the plaintiffs discovered that some of the stone cladding had delaminated from a wall of the dwelling and fallen to the ground. Further sections of the stone cladding detached and fell in 2010 and 2011.

[5] An application to the Ministry of Business Innovation…

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 Weaver v HML Nominees Ltd

Details

AGLC: Weaver v HML Nominees Ltd [2014] NZHC 2073
Case: [2014] NZHC 2073
Decision Date: 29 August 2014

CaseChat Overview and Summary

The case of Weaver v HML Nominees Ltd involved a dispute over the issuance of a building consent for remedial work carried out on a property in Auckland. The plaintiffs, who had purchased the property, claimed that the recladding work done on the property was defective, leading to significant damage. The defendants and third parties included various individuals and companies involved in the building consent process and the construction work. The central issue was whether Building Code Consultants Ltd (BCCL) and its director, Dr Kelvin Walls, owed a duty of care to the Auckland Council and the plaintiffs for providing an opinion on the proposed stone cladding system that was allegedly negligent. BCCL and Dr Walls applied to strike out the claims against them or, in the alternative, for summary judgment.

The court examined the legal principles applicable to strike-out applications and summary judgment, noting that the Court must be certain that the cause of action cannot succeed to strike out a claim. For summary judgment, the defendant must prove that none of the plaintiff's causes of action can succeed. The court found that BCCL's arguments for summary judgment on the basis of no reliance and no loss were not suitable for determination in the context of the application. The court also held that it was reasonably arguable that BCCL owed a duty of care to the plaintiffs based on the Building Act 2004, and thus, BCCL's application for summary judgment and to strike out the contribution claim was refused. Similarly, Dr Walls' applications were also refused as it was not suitable to determine the assumption of personal responsibility on a strike-out or summary judgment application. Costs were reserved.

Orders