White v McCullough - [2018] NZHC 2806

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2642 [2018] NZHC 2806

BETWEEN
CAROLINE RUTH WHITE

Plaintiff

AND

JOHN McCULLOUGH First Defendant

CARDNO (NZ) LIMITED Second Defendant

Hearing: 27 September 2018

Appearances:

L Herzog for the Plaintiff
M R C Wolff and S P Gunatunga for the Defendants

Judgment:

30 October 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 30 October 2018 at 3.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
L Herzog, Auckland and D Cowan, Auckland
Morrison Kent, Wellington

WHITE v McCULLOUGH [2018] NZHC 2806 [30 October 2018]

[1] The defendants (Mr McCullough and Cardno) apply to strike-out the claims of the plaintiff (Ms White) on limitation grounds.

The parties

[2] Ms White is a trustee of a trust called The Grafton Road Trust (the Trust). She says in her amended statement of claim that the Trust was established to purchase two residential units in a development at 160 Grafton Road, Auckland (the property).

[3] Mr McCullough is a licensed surveyor, and he is a former employee of Cardno. Cardno carries on business as an international consulting practice offering services in land development, surveying, planning and civil engineering.

Background

[4] In her amended statement of claim dated 13 June 2018 (the Claim) and in her supporting affidavit, Ms White makes the following allegations.

[5] In or about 2006, Cardno was engaged to undertake set-out works and prepare plans for the first stage of a unit title subdivision of the property. This included preparing three dimensional cadastral plans for what was then a four-storey commercial building and adjacent car park building on the property.

[6] There had been an earlier consent to subdivide the property, and Cardno based its draft unit title subdivision plans on certain electronic plans for a Building Consent BLD20060593901 (the Building Consent) that had been prepared by Michael Harkner, architect. The Building Consent plans are said to have included a demolition plan for the third floor and a proposed floor plan for a new third floor.

[7] On 20 September 2006, Mr McCullough sent an email to Auckland City Council (the Council) seeking approval of a new staged subdivision, with stage 1 to be configured around the existing building floor plates and the new western office suites shown on the Building Consent. There would be seven units in stage one, while stage two would see the creation of five additional units configured around the middle office suites shown on the Building Consent.

[8] On 28 September 2006 the Council issued a new resource consent and a new building consent to the then-owner of the property.

[9] The Council subsequently inspected and certified the various works, and on

5 December 2006 it certified that every building or part of the building shown on the plans complied with the provisions of the Building Code.

[10] On 18 January 2007, Cardno lodged Digital Survey Plan no.…

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 White v McCullough

Details

AGLC: White v McCullough [2018] NZHC 2806
Case: [2018] NZHC 2806
Decision Date: 30 October 2018

CaseChat Overview and Summary

In the case of White v McCullough, the plaintiff, Caroline Ruth White, a trustee of The Grafton Road Trust, sued the defendants, John McCullough, a licensed surveyor, and Cardno (NZ) Limited, an international consulting practice. The plaintiff alleged that the defendants were negligent in preparing plans and conducting surveys for a unit title subdivision of a property at 160 Grafton Road, Auckland. The defendants sought to strike out the plaintiff's claims on limitation grounds.

The court had to decide two main issues: whether the work carried out by the defendants was "building work" within the meaning of the Building Act 2004, to which the 10 year 'longstop' limitation period prescribed by s 393(2) of the Act applies, and if not, whether the plaintiff's claims were in any event statute-barred by the 6 year limitation period for tort claims in the Limitation Act 1950.

The court found that the work performed by the defendants was not "building work" within the meaning of the Building Act 2004, as it did not contribute in any way to the actual construction, alteration, demolition or removal of a building. The court concluded that including cadastral survey work within the scope of "building work" was neither required by the wording of the s 7 definition nor by the broader purposes of the Act.

As for the second issue, the court held that the claims were not statute-barred by the 6 year limitation period for tort claims in the Limitation Act 1950. The court held that the cause of action accrued on 9 November 2011 when the plaintiff entered into the agreements to purchase the units, and the proceeding was filed within 6 years of that date. The court found that loss was an essential component of both causes of action, and it could not be transferred to a subsequent owner. Therefore, the plaintiff could sue notwithstanding the fact that a previous owner might also have been able to sue.

As a result, the application to strike-out the plaintiff's claims was dismissed, and the plaintiff was entitled to costs.

Orders