Weir v Orchard HC Auckland CIV-2010-404-4425

[2011] NZHC 1649

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-4425

BETWEEN  PAUL FRANCIS WEIR AND WENDY PATRICIA WEIR

Plaintiffs

ANDLAWRENCE ORCHARD First Defendant

ANDEDWARD GREER WILSON Second Defendant

Hearing:         7 November 2011

Counsel:         PR Grimshaw for the Plaintiffs

LG Orchard, First Defendant, in person
EG Wilson, Second Defendant, in person

Judgment:      7 November 2011

ORAL JUDGMENT OF TOOGOOD J

Solicitors:

P Grimshaw/M Strauss, Grimshaw & Co., Auckland:  [email protected] [email protected]

L Orchard and E Wilson, C/- 127 Seddon Street, Raetihi 4632:  [email protected]

WEIR V ORCHARD HC AK CIV-2010-404-4425 7 November 2011

[1]      This  is  a  proceeding  by  the  owners  of  a  property  at  62A Marua  Road, Ellerslie, to recover from the alleged developers and project managers involved in the construction of a dwelling on the property, damages for negligence.  It is alleged that the dwelling is a leaky home.

[2]      A fixture for the substantive hearing of the claim over five days beginning on

Monday 28 November 2001 was notified to the parties on 17 July 2011.

[3]      Following a judicial settlement conference on 21 October 2011, which did not resolve the matters at issue, Christiansen AJ made the following timetable orders by consent:

(a)       the plaintiffs’ briefs were to be delivered by 4 November 2011;

(b)      the defendants’ briefs were to be delivered by 18 November 2011; and

(c)       briefs of evidence in reply and the plaintiffs’ bundle were to be served

and filed by 25 November 2011.

[4]      On 27 October 2011,  Mr Wilson,  on  behalf of  both  defendants,  filed and served a memorandum requesting that a telephone conference be convened at short notice,  in  accordance  with  leave  reserved  by  Christiansen AJ,  to  adjourn  the substantive fixture and for the setting of a timetable “to deal with the joinder of other parties to the proceeding and other interlocutory matters.”

[5]      The  plaintiffs  oppose  the  adjournment  for  the  reasons  set  out  in  a memorandum filed and served on 28 October 2011.

[6]      I have heard from Mr Wilson predominantly and also from Mr Orchard in support  of  the  adjournment  application,  and  I  have  had  the  benefit  of  oral submissions from Mr Grimshaw, on behalf of the plaintiffs, opposing.

[7]      In support of the application, the defendants complain that two days before the judicial settlement conference the plaintiffs provided them with a report from

expert witnesses, who had been engaged to advise the plaintiffs and to give evidence if necessary, who were different from the building consultants who had previously been engaged and whose report or reports had  previously been provided to the defendants.   It appears that the new report differs from the report of the initial consultants engaged by the plaintiffs.  It is said that it provides evidence which tends to establish the plaintiffs’ claims to a greater degree than the defendants believe the initial report did.   Mr Wilson has said frankly that there are elements of the new report which they understand and might accept, and that has cast a different light on the defendants’ views of the respective cases of the parties.  That is particularly so, he  says,  because  the  new  report  provides  greater  substance  to  potential  claims against third parties engaged in the construction of the subject property.

[8]      The defendants say that it is extraordinary that only six weeks from the substantive trial date, the plaintiffs have “without formal notification” to them or the Court, abandoned the expert report which the plaintiffs claim and, they say, their defence has been focused on for the past two years.  The defendants say they are significantly prejudiced by this development in that:

(a)      They spent considerable time and cost preparing for the settlement conference and the trial based upon the report from the previous consultant.  They say that their decision not to join third parties was also based on the report initially provided by the plaintiffs. They were advised on the basis of the original report that they would be at risk of claims for costs if they joined third parties and the claims against the third parties were not made out.

(b)They say they elected to proceed to a judicial settlement conference without legal representation in the belief that they would be dealing with arguments based on the former expert’s report which they had reviewed and assessed extensively in conjunction with their own expert.

(c)      They were disadvantaged at the settlement conference by having to deal with new information and material without the benefit of detailed

consideration or analysis of the report of the new consultants by their own expert and without the benefit of legal advice.

(d)They were required at the judicial settlement conference to speak to the   new   report,   which   runs   to   over   150 pages   and   includes approximately 80 photographs relating to various parts of the subject building, along with a  detailed laboratory analysis which  was not provided with the previous report.

(e)      They  were  presented  with  a  recommended  scope  of  works  for remediation which differs greatly to that proposed by them and that, therefore, they need to seek further expert advice.

[9]      The defendants say that as a result of these developments, and for the reasons given, they will not be ready for trial by 28 November 2011.

[10]     Among other issues arising, they say they need to revisit their decision not to join QBE Insurance (International) Limited as a party to the proceeding (although I apprehend that they really mean potential third party defendants insured by that company) and not to join other potentially liable parties.  The defendants say they had  already invested a  great  deal  of time and  incurred  considerable legal  costs exploring the possibility that QBE and other parties might have some liability, and that their decision not to join other parties at an earlier stage was based on  an assessment  the  evidence  that  was  included,  and  what  was  not  included,  in  the original report.   They were under a timetabling obligation to make any such application in respect of QBE by 27 September 2011.

[11]     The defendants quite properly acknowledge that if their wish to join third parties is pursued that will inevitably result in the adjournment of the proceedings anyway, and there can be no guarantee as to when a new fixture might be granted if other parties are joined to the proceeding.

[12]     Opposing  the  adjournment  application,  Mr Grimshaw  submits  that  the plaintiffs have filed and served their evidence in accordance with the timetable and

that there is no basis to vacate the fixture.  He says that the plaintiffs were not under any obligation  to  serve  copies  of any reports  which  had  been  prepared  for the purposes of the litigation; they would have been privileged documents not discoverable to the defendants.   He argues that having disclosed that privileged information or material in order to assist the defendants, and to facilitate settlement negotiations, the plaintiffs should not be penalised for making early disclosure prior to finally determining the nature of the expert evidence they seek to adduce in support of their claim.

[13]     Further,  Mr Grimshaw  argues  that  the  plaintiffs  pleaded  their  case  and supplied a list of defects in July 2010 when the statement of claim was filed and served, so that the defendants have had ample time to prepare their responses if the matter  finally  went  to  trial.    Mr Grimshaw  said  that  the  plaintiffs  agreed  to  a deferment  of  the  judicial  settlement  conference  initially  scheduled  for  mid- September 2011, to enable the defendants to consider whether to join third parties. He says that having been granted that indulgence, and having elected not to join third parties, the defendants should not now be granted a further indulgence at the expense of the delay to the proper hearing of the plaintiffs’ substantial claims.

[14]     I should note that in response to that submission Mr Wilson and Mr Orchard say that their decision not to join third parties was based very much on the state of the plaintiffs’ evidence as they believed it to be prior to 19 October 2011.  They say that they now want to revisit that issue in the light of the new information provided by the plaintiffs.

[15]     As  to  the  complaints  made  by  the  defendants  concerning  issues  of remediation and the measure of damages, Mr Grimshaw says these are matters which should be put to the Court by the defendants in evidence and/or submission at the hearing, that that is the proper place for questions of causation, damage and remedy to be determined.

Discussion

[16]     In a proceeding such as this, issues are defined by the pleadings.  Through pre-trial discovery of relevant documents and exchanges of evidence the parties become fully and fairly informed of their opponent’s case, and timetables are agreed or set so as to ensure that information is provided in a timely manner.   Here the pleadings are settled and discovery is complete.  Mr Grimshaw has confirmed that there is no intention on the part of the plaintiffs to amend the particulars of the claim as set out in the statement of claim dated 6 July 2010.

[17]     The parties agreed a timetable for the exchange of evidence which included, initially, provision of the plaintiffs’ evidence by 28 October 2011.   However, the parties agreed a revised timetable on 21 October 2011, during or at the conclusion of the judicial settlement conference.  In terms of that timetable the plaintiffs’ evidence was to be served by 4 November 2011.  That was done but, as Mr Grimshaw points out, the defendants had been provided with an advance copy of the expert’s evidence prior to the judicial settlement conference.

[18]     The  defendants  have  until  18 November 2011  to  file  their  evidence  in accordance with the timetable.  They will have had, by then, four weeks to prepare a response to the evidence on which the plaintiffs now rely.  If any evidence given at trial indicates that the plaintiffs are relying on issues not previously pleaded or brought to the attention of the defendants, then an amendment to the pleadings may be necessary.  The defendants will be able to oppose any amendment and to seek any adjournment if they are taken by surprise during any hearing.

[19]     I am conscious of the fact that the defendants are currently unrepresented. They were represented by solicitors until 13 October 2011, at least until that time, and I assume that they had the benefit of legal advice on joinder of third parties and other issues prior to that date.  As I understand it from the scheduling officers in the Court’s registry, if this matter is adjourned the earliest date on which a five-day fixture could be started would be 28 May 2012.   But, as became apparent in my exchanges with the defendants and Mr Grimshaw during argument, the purpose of the adjournment will be to enable the defendants to engage third parties in the

proceeding and there can be no guarantees that the case would be ready for trial, so far as those parties were concerned, by the middle of next year.  That means that, if this trial now scheduled for 28 November 2011 is to be adjourned, the plaintiffs will incur substantial delay before their case is to be heard.  As presently constituted and in accordance with the timetable which was agreed by the parties and set by the Court, the case should be ready for trial on 28 November 2011 in the absence of any third party claims.

[20]     Delay  in  hearing  the  plaintiffs’  claims  is  not  merely  a  matter  to  be compensated by a costs order.  The proceeding was issued 16 months ago and, as I have said, if the timetable is adhered to by the defendants then the case will be ready for trial on 28 November 2011.  There is the additional factor that Mrs Weir, one of the plaintiffs, is terminally ill.  The defendants have quite properly and reasonably agreed that Mrs Weir’s evidence may be given by affidavit; and that is to their credit. But there is that added factor that there can be no guarantee that she would be with us at a time when the case is heard next year if it is not heard later this month.

[21]     I  understand  the  defendants’  dismay  to  find  relatively  recently  that  the plaintiffs’ case, at least as far as the evidence is concerned, is somewhat different from that which they had previously understood it to be.  But while the attempts by parties to litigation to resolve matters amicably and by agreement are to be encouraged by the Court, in the end, if matters such as these cannot settle then they must proceed to trial in accordance with the Court’s orders.   In that sense, as I explained to Mr Wilson during the argument, two streams of information-sharing run in parallel; first, the formal pleadings and discovery in the Court proceeding in accordance with the rules of Court and the timetables set; and, second, by way of informal disclosure with a view to facilitating settlement.

[22]     I understand that the defendants may have been misled as to the strength of the plaintiffs’ case up to a few days prior to the judicial settlement conference, but, in the end, they have had up to mid-October the benefit of their own expert’s advice and they have had legal advice.  The decisions that they made whether or not to join third parties should have been made on the basis of all information, including the advance of the defendants’ own experts.

[23]     What  I  am  required  to  do  in  this  case  is  to  weigh  the  considerable disadvantage to the plaintiffs of having this case not heard on 28 November 2011 as scheduled, against the disadvantage which the defendants say they will incur by not being able to join third parties to the proceeding and have all matters dealt with between all potential defendants at the same time.

[24]     On balance I favour the plaintiffs’ position, which is that in terms of all of the Court’s processes this matter has been properly readied for trial and the plaintiffs have complied with all timetables, including the timetable for the provision of the evidence which they seek to lead in support of their pleadings.  The pleadings have not changed, so that the defendants have been on notice since July 2010 as to the matters of fact and law on which the plaintiffs rely in bringing the claims.

[25]     Requiring the trial to proceed without other parties being joined does not deprive the defendants of the ability to sue other parties if such a course is appropriate.    I  recognise  that  for  them  that  is  a  more  expensive  option  and  I recognise also that that is likely to add to the burden on the Court for resolution of these  matters.    But  on  balance  I  am  not  prepared  at  this  point  to  relieve  the defendants of the responsibility for getting ready for trial on 28 November 2011. The evidence on behalf of the defendants should therefore be provided in terms of the timeable order.

[26]     I should add that both Mr Wilson and Mr Orchard have urged on me the genuineness of their efforts to settle and I accept that.  It seems to me that they have gone to considerable lengths in order to endeavour to resolve these matters without the need for the Court to come to a decision.   I encourage them to continue with those efforts, but in the meantime they must prepare for trial in the event that settlement is not achieved.

[27]     If it appears to the defendants that proper grounds exist for making a further application to the Court for an adjournment, that can be heard although I do not, by saying that, offer them any prospect that an adjournment application would necessarily be granted.  But it is one which the Court would be obliged to hear.  In the meantime, however, the parties should prepare for trial on 28 November 2011.

[28]     The application by the defendants for an adjournment is dismissed.

[29]     At the request of the plaintiffs, I reserve the question of costs arising from the adjournment application.

...........................................

Toogood J