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High Court of New Zealand Decisions |
Last Updated: 9 April 2013
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV-2012-425-000341 [2013] NZHC 559
BETWEEN BODY CORPORATE 351522
First Plaintiff
AND DAVID VICTOR CURRAN AND KIM NANCY CURRAN
CIRCLE PROPERTY INVESTMENTS LIMITED
ANUP NATHU AND SADHANA NATHU NOVACORP LIMITED
LYNETTE JANICE DONALDSON JENNIFER CHRISTINE HAY AND STEPHEN ALEXANDER GREER BRUCE DONN MCNALLY
MATTRIX INVESTMENTS LIMITED HAMISH IAN MUNRO AND MILLY MY LOI SIN and
HAYBU LIMITED
Second Plaintiffs
AND QUEENSTOWN LAKES DISTRICT COUNCIL
First Defendant
AND ANDREW JOHN STEVENS Second Defendant
AND MARK LAWRENCE HILLARY Third Defendant
AND B F WHITHAM LIMITED Fourth Defendant
AND PHILLIP STANLEY MORRISON Fifth Defendant
Hearing: 25 February 2013
with additional evidence received 7 March 2013 and memorandum received 11 March 2013
(Heard at Christchurch)
Appearances: A J Thorn for Plaintiffs/Respondent
H M Rice/A C Harpur for First Defendant/Applicant (Counsel for other parties not involved)
BODY CORPORATE 351522 V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CIV-2012-425-
000341 [20 March 2013]
Judgment: 20 March 2013
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
[as to application for orders for inspection and testing of property]
Introduction
[1] In this proceeding, the plaintiffs sue the defendants for weathertightness and other issues affecting a Queenstown apartment block.
[2] The plaintiffs sue five defendants. Apart from suing the Council, they sue the two developers/project manager/builders, one designer and one structural engineer.
[3] The plaintiffs allege that the apartment block has been constructed with design and/or construction and/or mechanical engineering defects.
[4] This is a judgment in relation to two interlocutory applications –
(a) The Council seeks orders as to inspection and testing of the property; (b) Secondly, the Council seeks an order that the plaintiffs provide further
and better particulars.
[5] I deal first with the inspection and testing application (at [7]–[56], with the orders at [57]) and then with the further and better discovery (at [58]–[148]), with the order at [149].
[6] I also deal at the conclusion of this judgment with the allocation of a trial date for this proceeding. The Registrar had been directed on 27 November 2012 to allocate a trial date. A date had not been allocated by the time of this hearing as counsel for the Council had opposed the offered date in September 2013 by reason of unavailability of counsel. I heard from counsel on the issue of trial allocation at the commencement of this hearing. I indicated that I was provisionally minded to allocate the trial to September 2013, but reserved my ruling on allocation until I heard and was able to take into account the submissions I was about to hear
particularly in relation to testing and inspection. Formal directions as to trial appear at the conclusion of the judgment at [150]-[152].
Inspection and testing of the property
The jurisdiction
[7] Rule 9.34 provides:
Order for inspection, etc
(1) The court may, for the purpose of enabling the proper determination of any matter in question in a proceeding, make orders, on terms, for—
(a) the inspection of any property:
(b) the taking of samples of any property: (c) the observation of any property:
(d) the measuring, weighing, or photographing of any property: (e) the conduct of an experiment on or with any property:
(f) the observation of a process.
(2) An order may authorise a person to enter any land or do anything else for the purpose of getting access to the property.
(3) In this rule, property includes any land and any document or other chattel, whether in the control of a party or not.
[8] The plaintiffs do not object to the making of an order. The issue between the parties is as to the terms on which an order should be made.
[9] There was no difference between counsel as to the general principles which apply in relation to the making of testing and inspection orders. A helpful summary is found in the judgment of Associate Judge Sargisson in Tyco Flow Pacific Pty Ltd v
Grant,1 which I adopt:
[41] An order for inspection will be made only where it is for the purpose of enabling the proper determination of any matter in question in the proceeding. In other words, the inspection must be relevant to the issues in dispute in that proceeding: MacDonald v Hoggard (HC AK, M 242/93, 11 April 1994, Master Kennedy-Grant).
[42] Once this threshold jurisdiction has been established, exercise of the discretion in favour of an order is likely: Wheelans v Hayes (1986) 3
NZCLC 99,789.
[43] Any orders are to be made on appropriate terms. In situations where the orders sought are as far-reaching as Anton Piller orders, the Court may require the same undertakings: Overseas Containers Ltd v Geo H Scales Ltd (High Court, Wellington CP 395/86, 22
September 1986, McGechan J).
The orders sought by the Council
[10] By its application, the Council sought orders that it be permitted to:
(a) Inspect the plaintiffs’ property at 54 Fryer Street, Queenstown;
(b) Carry out testing, including invasive testing and taking samples; and
(c) Collate data from monitoring devices internally and externally at the property.
[11] The Council proposes that the orders be made on the following terms:
(a) Copies of the testing and monitoring data be provided to counsel for all parties on a monthly basis for the duration of the testing and monitoring;
(b) The start and end date of the testing and monitoring is to be advised to the plaintiffs before such testing and monitoring commences;
(c) The Council will use its best endeavours to carry out all testing and monitoring promptly, safely and efficiently;
(d) The Council is responsible for the cost of setting up and operating a telephone link in unit 5A;
(e) All testing and monitoring materials and equipment are removed by the Council promptly at the completion of the testing;
(f) The Council will indemnify the plaintiffs for any damage to their property caused by the testing and/or monitoring for which the orders are sought.
[12] By their notice of opposition the plaintiffs record that they are prepared to agree to testing and monitoring orders but on the basis that different terms or protocols would apply. The defendants put forward nine terms or protocols, with some overlap between those and the Council’s suggestions.
The timing of this application
[13] I will deal first with the timing of the application as it has some background relevance.
[14] The Court directed, at the first case management conference in September
2012, that any interlocutory application as to further particulars be filed by 7
November 2012. In their notice of opposition the plaintiffs have incorrectly referred to the 7 November 2012 date as the deadline for the filing of all interlocutory applications. As it was, at the next conference (27 November 2012), the only outstanding interlocutory matters discussed by counsel were a specific issue as to the extent of the plaintiffs’ discovery of relevant financial information and the allocation of hearing directions for a particulars application which had been filed and was set down to be heard today (but has since been resolved by agreement). Accordingly no further directions were made as to filing of interlocutory applications. The close of pleadings date was specified as 75 working days before the trial date. The setting down date specified in the context of comprehensive trial directions, with a direction to the Registrar to allocate a 10-day trial on the first available date after 1 September
2013. Then in late-January 2013 the counsel filed this application.
[15] Ms Thorn, for the plaintiffs, has submitted that the trial of this proceeding ought to be able to proceed at its earliest available date. She submits that it ought
not to be affected by the Council’s late application for inspection orders. She says that it is relevant in this context that one, if not two, (Apartments 5A and, to a lesser extent, 4A) of the apartments are at present contaminated and it is possible that further apartments will be contaminated by the date of the fixture as they continue to deteriorate. She says that the impact of fungi, spores and rot in those apartments means that they are uninhabitable. She submits that any further delay of a fixture would cause the owners further prejudice.
[16] The Deputy Registrar initially proposed to allocate a trial to commence at Invercargill on 16 September 2013 (10 days). Before this hearing, the Deputy Registrar advised that it appeared that the plaintiffs and other defendants would accept the 16 September 2013 date but counsel for the Council have indicated that they have difficulty in accepting that date because of existing commitments to other trials already allocated around that period. Mr Rice gave more detail of those commitments at the hearing. The Deputy Registrar had also identified a possible trial date commencing 25 November 2013. Following the hearing she has received advice from the plaintiffs and all defendants other than the Council that such date would be accepted by them (the plaintiff nonetheless expressing a strong preference for the earlier September date). The Council’s position is that intended Senior Counsel (Mr Heaney QC) is already committed to another trial which runs through the late September/early October period.
Period of testing
Background
[17] The building on the property was constructed in 2004 and 2005. It was the subject matter of proceedings which were before the Weathertight Home Resolution Service and/or Tribunal from July 2010 for almost two years before this claim was filed (in June 2012). The application for testing which the Council filed in the Tribunal in May 2012 was substantially reproduced in this application filed in January 2013. The major difference between the two applications related to the period during which the Council’s experts proposed testing.
The evidence
[18] The Council’s notice of application did not identify a specific period of proposed testing. But in his affidavit in support, Dr Nicholas Powell, a forensic scientist, deposed that it is important the monitoring period includes both summer months and winter months and “the longer ... the better”. In a further affidavit in support, Trevor Jones, a building surveyor, deposed that he agreed with the scope of testing suggested by Dr Powell. Mr Jones said that it would be necessary to test during changes in seasons, with an envisaged minimum eight-month period of testing and a preferable 12-month period of testing. In other words, if an order were to be made now and testing set up by mid-March, Mr Jones’ preferred testing regime would run to early March 2014.
[19] By their notice of opposition, the plaintiffs propose a completion date for testing and monitoring of 31 July 2013. The evidence in opposition on this point is from Dr Roger Feasey, a building science and fire engineer, who gives detailed reasons for the July cut-off. He deposes:
17(c) I note that Mr Jones deposes at paragraph 15:
It will be necessary to test during changes in seasons and is envisaged that a minimum eight months period of testing is required and up to twelve months is preferred
Based on the physics of heat transfer processes which result in condensation it is my opinion that testing after 31 July 2013 makes no sense and will not provide any additional useful data. This is for the following reasons:
ii. Given the specific geometry of 54 Fryer Street and the large topographical obstruction (hill) to the west, significant solar gain can only occur when the sun is in the east or north, i.e. morning to early afternoon.
iii. Given the height and solid construction of the balustrades around all the east facing decks, no significant direct solar radiation would be received from the sun during the first few hours after rising over the winter period.
iv. Given that the decks receive minimal solar radiation during periods of low solar elevation, the temperature of the exposed concrete surface within the ceiling void underneath the deck will primarily be a function of the outdoor air temperature conditions (assuming nominally constant internal temperature conditions are maintained within the occupied spaces).
120 hours respectively (N.Z. Met. S. Misc. Pub.
177).
0.3, -0.4 and 0.9 degrees Celsius respectively (N.Z. Met. S. Misc. Pub. 177).
vi. The months of June and July are the two months of the year with the lowest average solar elevation, the lowest mean daily global radiation, the lowest average sunshine hours, the lowest average monthly temperatures and the lowest average minimum daily temperatures.
vii. If condensing conditions are not observed by the end of July, there is no reason to expect the potential drivers of condensing conditions to worsen in later months, as the solar elevation, the mean daily global radiation, the mean monthly and mean daily minimum temperatures will all increase above their values in June and July and consequentially will progressively reduce the likelihood of the occurrence of condensation.
[20] A supporting affidavit in opposition was also filed by Noel Casey, a building surveyor, who (having read Dr Feasey’s affidavit) deposes that he agrees that if condensation has not been recorded by July, it is unlikely to occur. Mr Casey deposes that he does not see any basis for testing to extend beyond the end of July
2013.
[21] In an affidavit in reply, Dr Powell refers to the evidence in opposition and responds:
16. It is important to note that the units are subjected to firstly external moisture and secondly internal moisture from human occupancy. In order to gauge the impact of external moisture as opposed to interior moisture due to human occupancy through the colder winter months, when the difference in external and internal temperature is likely to be at its highest, as well as during the change in seasons when heat sources are likely to change, it is crucial for comprehensive data to be obtained over a 6-8 month period, as a minimum.
17. I would recommend a testing period from late March/early April
2013 through to the end of October 2013.
[22] I observe, in relation to Dr Powell’s reference to a six-to-eight month period, that a six-month period from late-March would end in late-September and that an eight-month period would end in late-November. Mr Jones, in a second affidavit, says that he agrees with the opinion of Dr Powell that the period of testing should span from late-March/early-April 2013 to the end of October 2013 for the reasons set out in Dr Powell’s affidavit.
[23] Thus, the Council now seeks a right of inspection and testing lasting to 31
October 2013 whereas the plaintiffs seek a cut-off date of 31 July 2013.
[24] The difference in suggested timing is driven by the views of Dr Powell and Mr Jones as to the need for testing as the seasons change (from autumn to winter to spring) and as the difference in external and internal temperatures peaks in the coldest winter months and then lessens.
The admissibility of the evidence
[25] Ms Thorn formally objected to those parts of the evidence of Dr Powell and Mr Jones which deal with the allegations of condensation arising from engineering or mechanical causes (rather than water intruding from an exterior source). A particular emphasis of the objection was upon evidence as to the period reasonably needed for testing.
[26] Ms Thorn noted the evidence of the plaintiffs’ expert, Dr Feasey. Dr Feasey, having stated his qualifications as an expert, deposed that the proposed testing for condensation must be guided by the physics of the thermo-dynamics and heat transfer processes which are occurring, matters within the expertise of a mechanical engineer who specialises in heat transfer and fluid mechanics. Dr Feasey deposed that most professional engineers do not have to deal with matters of thermo- dynamics or heat transfer and that he was not aware of other experts carrying out any modelling of the likelihood of condensation. Dr Feasey deposes that he has carried out such modelling. In short, Dr Feasey, while deposing to his own qualifications, was challenging both the relevant expertise and the conclusions reached by the Council’s witnesses.
[27] I regard the key evidence which had been adduced by the Council in this regard as that of Dr Powell. Dr Powell’s evidence had not contained an express statement as required by Item 3(c) of Schedule 4 of the High Court Rules to the effect that the extent of his evidence is within his area of expertise.
[28] I indicated to counsel that I regarded the fundamental issue in this aspect of the application (the testing of property) as too important to be determined upon the basis that the evidence of either party was frozen at the date of the hearing of the interlocutory applications. I considered it appropriate that the parties have the opportunity to have their deponents specifically deal with any issues that go to admissibility. I regarded the issue of the respective expertise of the various experts as a matter on which the experts were perfectly able to confer from their own depth of understanding of the relevant areas. It appeared to me to be an appropriate case to
require the experts (Dr Powell and Dr Feasey) to confer in terms of Item 6(a) of
Schedule 4 of the High Court Rules.
[29] Accordingly, I issued a Minute to counsel after the hearing in which I directed that counsel arrange for Dr Powell and Dr Feasey to confer as to any degree of recognition of expertise and to report back by 8 March 2013. I gave leave for the filing of additional evidence as to expertise. I recorded that s 25 Evidence Act 2006 reinforces the fact that the Court may rely only upon the general body of knowledge which makes up the expertise of an expert. Those considerations apply as equally to evidence at an interlocutory hearing as at a trial.
[30] Dr Feasey and Dr Powell subsequently met and conferred as directed. It is reported to me that they were unable to reach a common position on Dr Powell’s expertise. In accordance with my directions, Dr Powell has provided an additional affidavit in which he confirms in accordance with Item 3(c) of Schedule 4 High Court Rules that the evidence he has given in his earlier affidavits is within his area of expertise. He provides some detail including activity in paleoclimate research which requires an understanding of climate processes and atmospheric chemistry. He adds that the science which governs atmospheric and climatic processes also underpins processes controlling condensation inside buildings.
[31] There is thus a difference between the parties as to the measure of Dr
Powell’s expertise.
[32] The Council has, in addition to arranging the conference between experts, taken the additional step of retaining an additional expert, Robert John Nelligan, a consulting engineer who specialises in mechanical design for building services. Dr Powell has exhibited to his new affidavit a letter from Mr Nelligan dated 7 March
2013. The short point is that Mr Nelligan agrees with the testing program proposed by Dr Powell, both in terms of scope and duration. Dr Powell concludes his new affidavit with the statement:
... I remain of the view that testing until 31 October 2013 is essential.
[33] In the evidence relied on by the Council at the hearing. Dr Powell’s opinions as to testing were supported by the evidence of Mr Jones. Mr Jones has similarly filed an additional affidavit in which he has also confirmed that the evidence which he has given in his previous affidavits is within his area of expertise. He refers to experience since 2002 as a building surveyor/expert witness assisting in the technical analysis of building defects. He deposes that that work is required in understanding of movement and accumulation of moisture into and within buildings which is within the reach of his particular area of specialist expertise.
[34] The Court accordingly now has the required statements from the Council’s two experts to the effect that the evidence they have given is within their areas of expertise.
[35] Ms Thorn has filed a memorandum, in which responsibly she does not seek to challenge those recent statements from Dr Powell and Mr Jones respectively. She does however challenge the content of Dr Powell’s affidavit to the extent that it refers to the report of Mr Nelligan and also to Dr Powell’s exhibiting of Mr Nelligan’s report. Ms Thorn submits, correctly, that Mr Nelligan’s opinion is not before the Court in admissible form. I accept that submission.
Discussion
[36] The need for testing is established. There remains dispute as to the period required for the testing to be truly meaningful or informative. The Council’s evidence suggests in some aspects (particularly Mr Jones’s second affidavit and Dr Powell’s new affidavit) that testing to the end of October 2013 is essential. On the other hand, Dr Powell himself had earlier referred to a required testing period of six to eight months, with six months meaning that the earlier ending would be in late September whereas the later ending would be in late-November. It appears that he has chosen the middle date. The evidence for the plaintiffs, through Dr Feasey, is that testing to the end of July 2013 would deliver the relevant information.
[37] The Court in this interlocutory context cannot resolve the differences between the experts and, to some extent, within the evidence of Dr Powell.
[38] The Court is left to balance the reasonable and predictable needs of evidence- gathering with the reasonable expectations of the parties in relation to the conclusion of their litigation.
[39] Having regard to the Deputy Registrar’s confirmation that a trial commencing on 27 November 2013 is available, in my judgment the fair needs of all parties in relation to preparation of their evidence for trial and in the commencement of trial can be accommodated by selecting a November date. Approximately two months before that date (end-September), Dr Powell’s lower estimate of six months for testing will come to an end. If the Council’s experts at that point consider an additional month of testing is called for, there is as a result of additional information flowing from October testing sufficient time remaining with the ability to update briefs of evidence if required.
[40] To reinforce the submission that the Council ought not to be allowed to effectively cause delay by obtaining a lengthy period of inspection, Ms Thorn took me to the history of an earlier proceeding in the Weathertight Homes Tribunal. The subject matter of this litigation was first taken to the Tribunal. In the Tribunal, the Council filed a testing application in March 2011. The proceeding then went through disclosure and interlocutory stages. After the Tribunal allocated a hearing date of 13 August 2012, the Council applied for an inspection order on almost identical terms to the testing application. The inspection order application was dated
25 May 2012. It was at that point that the plaintiffs (as claimants in the Tribunal) decided to move their claim from the Tribunal to the High Court. While the matter was still before the Tribunal, some detailed consideration occurred of what would be appropriate conditions or protocols on any testing order and Ms Thorn filed for the claimants on 7 June 2012 a proposal for protocols of considerable detail.
[41] The Council’s May 2012 application to the Tribunal for a testing order was upon the basis that the Council would be granted immediate access to the units to carry out the testing and monitoring. Ms Harpur stated in the application that the additional testing and monitoring would not impact on the hearing date set, that is to say 13 August 2012 (a date at that point slightly under three months away). At that point, the Council anticipated testing of three to five weeks.
The conditions to attach to the order
[42] I will discuss those specific conditions to which counsel for the plaintiffs has addressed submission in opposition.
Provision of information
[43] The Council seeks an order that copies of the testing and monitoring data (by implication being the testing and monitoring data obtained from the ordered tests and monitoring) be provided to counsel for all parties on a monthly basis for the duration of the testing and monitoring.
[44] The plaintiffs propose that copies of all testing and monitoring results and all information relating to methodology be provided to counsel for all parties on a fortnightly basis for the duration of the testing and monitoring.
[45] The Court is accordingly required to consider two matters, namely the subject matter of disclosure and the timing of disclosure.
[46] The only difference as to subject matter lay in the plaintiffs’s suggestion that copies of all information relating to methodology be provided along with testing and monitoring results. In her written submissions, Ms Rice raised a query as to what information would be encompassed by “methodology”.
[47] Turning to the time at which information was to be provided the deponent, Mr Jones, responded to the suggestion of fortnightly reporting. He deposed that it would increase the cost to the Council which is already substantial. He added that for a testing period lasting several months collating and distributing the data once a month is, in his view, appropriate, when considering that the frequency of the testing will be set for specific intervals to record readings on a daily basis. The information will be held in the monitoring units. It is intended to draw down that data from the monitoring units by remote activation but, if that is not feasible, it will be necessary to visit the building.
[48] The appropriate direction is that the Council provide the required information promptly upon its collation into table form and/or reports (whether written or electronic) and in any event no later than at calendar monthly intervals commencing one month from the date of commencement of testing. The purpose of the provision of reports to other parties is to ensure that they have promptly what the Council has, and can prepare on an even footing. That includes an explanation of methods, processes and formulae used or followed. It is not intended to provide the other parties with a professional service which goes beyond that which the Council intended for itself. It is not appropriate to impose upon the Council an additional financial burden other than to promptly provide such tables and reports as are prepared.
Nomination of units for testing
[49] The Council wishes to carry out testing on five units: (a) One unit on the top floor (Unit 6A or 6B)
(b) One unit low down: Unit 1 as that unit is on both the north and south side and occupies one floor level, whereas the other floors have two units
(c) One unit on the south-side: either Unit 2A, 3A or 4A
(d) One unit on the north side: either Unit 2B, 3B, 4B or 5B (e) An unoccupied unit: Unit 5A.
[50] The Council’s proposal draws on the evidence of Dr Powell in a second affidavit. In that affidavit he was responding to the proposal by the plaintiffs, in their notice of opposition, that the Court should define the apartments for testing as Units
1A, 2A, 3A, 4A, 5A and 6A on the basis that they would provide a better representative or fair sample, with testing required of both occupied and unoccupied apartments. Dr Powell deposes that the units which he (and the Council) identifies
are more representative of the different types of units at the complex than those proposed by the plaintiffs. He accepts that it is useful to test both occupied and unoccupied units, so he has included the unoccupied Unit 5A.
[51] Ms Thorn did not refer me to any case in which the Court has effectively overridden the opinion of the applicant’s expert and required an applicant to test different units. One can envisage such an order if, other things being equal, a different identification of subject matter would cause less interference or indeed damage to an occupant or owner. There may also be other specific situations where the applicant is required to depart from its preferred focus. On the evidence, this is not such a case. The Council has taken expert advice and is, in the identification of the units to be tested, acting on that advice. It is not appropriate in these circumstances to impose upon the Council an alteration of preferred units for testing. Nothing in the orders to be made will cut across the right of the plaintiffs to have testing carried out themselves or indeed to confer with the Council’s solicitors and experts as to additional testing at the expense of the plaintiffs.
Costs
[52] Understandably, having regard to the nature of the application, the Council did not seek an order for costs or disbursements (including the fees of experts) when making its application.
[53] By the conditions which the plaintiffs ask to be attached to any order made, the plaintiffs seek the actual fees and disbursements of the plaintiffs’ experts (named as including Dr Feasey and Mr Casey) in attending to the present application and the application made in the Tribunal. (Ms Thorn has made it clear that the costs in question would be confined to dealing with the Court applications and would not relate to testing and monitoring results or data).
[54] It is not jurisdictionally open to this Court to consider the costs incurred by experts in relation to proceedings in the Tribunal even where the subject matter is the same or very similar.
[55] That leaves the attendances of the plaintiffs’ experts in relation to this application itself. I do not view it as fair and reasonable that the costs in question be fixed now and ordered to be paid by the Council. If the plaintiffs ultimately succeed in this litigation, it is likely that they will obtain a costs order against unsuccessful defendants to the full extent of the plaintiffs’ experts’ fees. While their involvement in the present application is as experts, the reality is that an aspect of their contribution has been to protect the interests of the plaintiffs by seeking to reshape the orders to what the plaintiffs’ experts, would prefer as against what the Council seeks. Costs remain in the Court’s discretion. This application of the Council was necessary if the Council was to be able to lead evidence on testing at trial. The appropriate course is that the costs of the experts be determined upon the outcome of trial.
Outcome
[56] The Council, as the plaintiff accepted, is entitled to an order under r 9.34 of the nature it seeks. The conditions I attach to that order follow from the previous conclusions.
Orders
[57] I order:
(a) The plaintiffs are to permit the first defendant through its retained experts and tradesmen, to inspect and carry out the observation and sampling of five units of the plaintiffs’ property at 54 Fryer Street, Queenstown (“the property”) being:
(i) One unit on the top floor (Unit 6A or 6B) (ii) Unit 1
(iii) One unit on the south-side (either Unit 2A, 3A or 4A)
(iv) One unit on the north-side (either Unit 2B, 3B, 4B or 5B) (v) Unit 5A.
(b) The testing may include invasive testing and taking of samples;
(c) The first defendant’s experts may cause monitoring devices to be placed both internally and externally at the property;
(d) The first defendant’s experts may collect and collate data from the
monitoring devices during the period of inspection and testing;
(e) The above rights of inspection, and related attendances are subject to the following conditions:
(i) The first defendant’s experts are to have access to the property
for the purposes of the testing and monitoring from Monday,
25 March 2013;
(ii) The first defendant is to cause its experts to have finished all testing and monitoring and to have removed all introduced material no later than 31 October 2013;
(iii) The first defendant will not be entitled to dates of testing and inspection outside those dates but is to give the plaintiffs’ solicitors no less than 48 hours notice if either the start-late date is to be later or the end-date is to be earlier;
(iv) The first defendant shall use its best endeavours to carry out testing and monitoring promptly, safely and efficiently;
(v) The first defendant may set up and operate a telephone line in Unit 5A and is to be responsible for all costs associated with such telephone line;
(vi) The first defendant shall indemnify the plaintiffs for any damage to the property caused by the testing and/or monitoring carried out pursuant to this order;
(vii) The first defendant is to provide copies of all testing and monitoring data to each solicitor’s firm representing other parties at intervals of no less than one calendar month commencing 30 April 2013;
(viii) At the time of providing the April 2013 testing and monitoring data, the first defendant shall provide a written report from its experts explaining the methodology associated with the testing and monitoring of the property in such terms as will reasonably explain the methodologies used to an informed reader of the reports.
Further and better particulars
The jurisdiction
[58] High Court Rule 5.21(3) authorises the Court, where a pleading is defective or does not give particulars properly required by a notice, to order a more explicit pleading to be filed.
[59] I adopt these as principles applicable to the consideration of an application for further and better particulars:
(a) The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet and of
its parameters and so enable them to take steps to deal with it.2
(b) The statement of claim should state the claim in each case so that the Court has sufficient clarity and detail to understand the issues it has to rule on, and the defendant knows the case which is to be met and is able to prepare its briefs against the plaintiff’s pleadings.
(c) Specifically required by r 5.26(b) are such particulars “... of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the Court and the party or parties against whom relief is sought of the plaintiff’s cause of action”.
(d) The pleading must set out the facts or circumstances relied upon as giving rise to each cause of action alleged and the relief claimed as a consequence.
(e) The nature and level of particulars will depend on the facts of the individual case.
(f) The distinction between particulars and interrogatories is important – particulars are matters of pleading, designed to make plain to the opposite party the case to be raised whereas interrogatories are sworn statements of fact, procured by the opposite party to assist that party in proving his or her case.
(g) There is not a bright-line distinction between facts (to be pleaded) and evidence (for trial) – the two merge into each other. But the statement of claim is not a full statement of evidence – rather it is an abbreviated statement of basic facts.
(h) In more complex commercial litigation, detailed particulars may be required. But this is to be balanced against the possibility that over-
pleading may obscure, rather than clarify the issues.3
3 BNZ Investments Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21,821 (HC).
[60] For these principles I draw heavily on the Court of Appeal judgment delivered by McGechan J in Price Waterhouse v Fortex Group Ltd.4 His Honour referred to the role of pleadings in a case of any complexity, if not in all cases, as “an essential road map for the Court and the parties”.5
[61] Ms Thorn, for the plaintiffs, sought to draw on certain passages in the judgment of the Court of Appeal in Fortex – for instance, that “the role of pleading is put as defining fact, not evidence” and “there is no need to plead a specific dollar connection to a specific breach”. But the passages cited by Ms Thorn do not form a part of the Court’s statement of principles – those principles come at pp 18-19 of the judgment. Instead, the passages relied on by Ms Thorn represent extracts quoted by Fortex’s counsel in support of his submissions as to the requested particulars being
beyond recognised limits.6 They were not statements adopted by the Court of
Appeal.7
[62] A final point is in relation to the Court’s approach to particularisation, and its relationship to evidence. It has been judicially recognised that the modern arrangements for sequential exchange of written briefs of evidence does not alter the need for, or the pleading of particulars. That said, the Court when considering particulars will be making a decision which involves matters of degree and judgement. Where the parties have exchanged (even on a without prejudice basis) their detailed experts’ reports, the Court may legitimately take into account the availability of such detail to the other side when determining the extent of detail to
order by way of further particulars.
4 Price Waterhouse v Fortex Group Ltd CA 179/98, 30 November 1998 at 17-19 per McGechan J.
5 At 17.
7 At 18-19, the principles as adopted in Fortex are to be found specifically identified by
McGechan J.
The orders sought by the Council
[63] The Council served a notice requiring further and better particulars. The plaintiffs largely refused to comply with the notice. The Council seeks the same particulars as specified in the notice.
[64] Attached to this judgment are:
Schedule 1 – the plaintiffs’ statement of claim
(26 June 2012) 
Schedule 2 – the Council’s
Notice (20 August 2012)
Schedule 3 – the plaintiffs’ answers (11
October 2012)
Schedule 4 – the Council’s application (7
November 2012) (without notice of 20 August 2012 – already
in Schedule
2)
Schedule 5 – the plaintiffs’ notice of opposition (19 November 2012).
The submissions
[65] Ms Rice explained the Council’s request for further particulars as falling into
four broad categories namely: defects, breach, damage and quantum.
[66] Ms Rice then identified by reference to the current statement of claim, the paragraphs in the plaintiffs’ pleadings which deal with the different categories:
defects are dealt with in [22]-[23], and are the subject of
a more detailed
schedule of defects in Schedule 3 to the statement of claim;
damage is dealt with at [24];
quantum or loss is dealt with at [25], with a prayer for
general damages at
[26];
breach of the first defendant’s duty of care is
pleaded at [29] in light of
the duty of care as pleaded at [27] and [28].
[67] The statement of claim by reference incorporates, in addition to those pleadings and schedules, paragraph 15 of the report of the Weathertight Homes Resolution Service Assessor dated 8 July 2008. That report carried conclusions as to
the following questions:
Does the Multi-unit Complex leak? 
Where
and why does it leak?
What damage has been caused to the Multi-unit Complex?
Where and why might the Multi-unit Complex leak in the
future? 
What damage might be caused by a leak
in the future?
What remedial work is required to [specified units and other property]?
[68] The report contained a summary of costs broken down to current damage and future likely damage and an estimated total cost of repairs (including GST) of
$779,457.
[69] Ms Rice then took me to differences between the plaintiffs’ claim (including as to amount) as it had previously stood in the claim before the Tribunal, and as it now is represented in the statement of claim. First, although the plaintiffs adopt by reference the Assessor’s conclusions (which involve the $779,457 assessment of damage) the particulars given of rectification in paragraph 25 of the statement of claim indicate an estimated cost of $820,481. The measure of increase is not particularised or otherwise explained.
[70] Secondly, the statement of claim in this Court, through paragraph 22, adds to the allegations as to design (raising weathertightness issues) which were before the Tribunal. The plaintiffs now allege that there were also various construction defects
and/or mechanical engineering defects. Paragraph 25 of the statement of claim identifies the costs of rectification of structural issues as estimated at $300,000 (to be fully particularised once further details are available and prior to trial), and the cost of rectification of mechanical engineering and condensation issues as $500,000. The statement of claim makes no reference to that latter head of loss being further particularised and detailed prior to trial, but that appears to be implicit.
[71] One thrust of Ms Rice’s submissions was that it would be inappropriate for this Court to assume that a full understanding of the detailed nature of the plaintiffs’ claim is to be found in the developed documentation (including the Assessor’s report) that was previously in place when the proceeding before the Tribunal was discontinued. The plaintiffs’ claim since that time has changed its shape both in terms of the type and range of defects alleged and the amount of the claim in its various components.
[72] Ms Rice noted the absence of the often-agreed arrangement whereby plaintiffs in particular agree to the early provision of their expert reports on a without prejudice basis, so as to assist the defendants in understanding the specifics of the plaintiffs’ claim. Ms Rice submitted that the absence of that arrangement in this case makes it imperative the Court not regard the future exchange of briefs of evidence as a panacea for the plaintiffs’ failure to adequately particularise their claim. Ms Rice noted the importance of relevant experts in leaky building cases, their relative scarcity and commitment, and the potential for their availability to be limited at the point preparation for trial and preparation of evidence is taking place. This underscores, in her submission, the importance of early particularised pleadings as a proper signpost for the defendants’ experts.
[73] Ms Rice noted the important role played by alternative dispute resolution (and judicial settlement conferences) in assisting the parties to resolve their litigation short of trial. Those resolution processes are integral to the system of justice as it now stands. Ms Rice submitted that appropriate particulars are therefore not important simply for the “strict Court process” but also for the broader processes which bring about resolution in litigation. Ms Rice referred to the “front-ended” modern approach to case management, as reinforced by the High Court’s case
management note in relation to leaky building claims in the High Court at Auckland.
Under the heading “issues” that note observes:
Identifying the essential issues of fact and law that require resolution at trial is important if the resolution process is to be efficiently conducted. A broad- brush approach to this is not satisfactory. There needs to be enough detail so that, ultimately, the briefing of witnesses of fact is directed specifically to the problem areas and, in the case of experts, they are directed to matters which are in their field of expertise ...8
[74] Ms Rice submitted that these observations are as relevant to the requirements for particularisation of pleadings as they are to the first case management conferences and issues conferences provided for under the High Court Rules with effect from February 2013.9
[75] Ms Rice then discussed the specific particulars requested in the notice of application. I will return to those shortly.
[76] Ms Thorn commenced her submissions in relation to particulars by referring to an approach which the plaintiffs were prepared to adopt in relation to providing additional, tabulated information. She proposes an amended Schedule 3 to the statement of claim which would provide particulars of the standard or statutory requirement allegedly breached – three pages from a sample provided by Ms Thorn are attached as Schedule 6 to this judgment and illustrate the manner in which the alleged breach of standard would be identified.
[77] In addition, Ms Thorn proposed in her oral submissions a further three columns (that is supplementary to the amended defects Schedule) which would have
as three headings:
Construction
Defects
Design
Defects
Machinery
Defects
[78] Ms Thorn added that most defects would qualify as being both design and
construction defects, with only a “handful” in the machinery defects column. The
9 See High Court Rules 7.3 and 7.5.
tabulated information, so completed, would then fit in with the categories identified in the defects allegation in paragraph 22 of the statement of claim and the quantum allegations in the three categories in paragraph 25(a) of the statement of claim.
[79] Ms Thorn submitted that once the request for particulars moved beyond those which would be covered in the newly tabulated approach, they were moving beyond the requirement to permit a defendant to understand the general nature of the case against it. The Court, she submitted, should recognise that although some requests on their face appear to be reasonable, compliance with all the requests would be hugely onerous and highly expensive for the plaintiffs.
[80] It was at this point of her submissions that Ms Thorn referred to passages from the judgment of the Court of Appeal in the Fortex case which I have previously discussed10 – those passages in the judgment in fact recite, as I have said, the submissions for the plaintiff in Fortex and have to be treated with care. The Court of Appeal’s actual statement in Fortex of the principles relating to particularity is that contained at pp 18-19 of the judgment.
[81] Ms Thorn submitted that caution is required in relation to the extent of any order as to particularisation. By reference to the judgment of Associate Judge Bell in Helicopter Finance Ltd v Tokoeka Properties Ltd,11 Ms Thorn identified the particular needs of cases involving leaky building litigation (and other negligence cases involving allegations of negligent inspection certification) where it is the defendant which will know how it carried out its task, something which the plaintiff cannot know exactly.12 As Associate Judge Bell indicated in such cases, it is futile to require a plaintiff to specify in what way a defendant allegedly carried out its task in breach of the duty of care. What the plaintiff can do is to prove the defects and the required standard of care, and to then show that the defects would not have occurred if the defendant had carried out its work to the required standard.13 Associate Judge
Bell distinguished the issues on which a plaintiff is able to call direct evidence as to a
10 Above at [61].
11 Helicopter Finance Ltd v Tokoeka Properties Ltd [2012] NZHC 686.
12 At [22].
13 At [23].
particular matter (such as the way in which a defendant carries out its inspections) from other issues, such as the identification of defects and the costs to be allocated for the remedy of particular defects.14
[82] Through these submissions, Ms Thorn accepted that there was a need for a proper focus on defects, in particular, but suggested that many of the other particulars sought were excessive and should be refused.
The particulars requested – discussion
Paragraph 22 (first issue) – request 1
[83] The Council seeks an order that the plaintiffs identify into which category or categories (design, construction or mechanical engineering) each defect in the statement of claim (Schedule 3) and in paragraph 15 of the Weathertight Homes Resolution Service report belongs.
[84] The plaintiffs no longer oppose this order. Ms Thorn, in her submissions, addressed the specific way in which the plaintiffs have it in mind to provide such detail.15 The Court’s order will require such particulars to be provided.
Paragraph 22 (second issue) – request 2
[85] The Council seeks an order that the plaintiffs identify in relation to design defects the plan(s) and/or the paragraph(s) from the specification which contains the defective detail.
[86] In request 13, the Council makes a parallel application in relation to paragraph 29(a) of the claim, seeking particulars of the alleged insufficiencies in the plan(s) and specification(s), and how each alleged insufficiency was contrary to the
Building Code. In request 17, the Council has a further, similar application in
14 At [21] and [26].
15 Above at [54].
relation to paragraph 29(b)(v) of the claim, requesting particulars of how and when the design did not comply with the Building Code e)(3); g(4) and h(1).
[87] In response to request 2 (to state where the defect was in the plans or specifications) Ms Thorn submitted that the plaintiff should not be required to plead “where” as the plaintiffs’s case is that the whole of the buildings do not comply. She submits that the level of the detail sought goes beyond what the Council needs to understand the case it has to meet.
[88] Ms Thorn’s submission will be correct if the plaintiffs’s only case is that the whole of the buildings do not comply. On the other hand, if it is to be part of the plaintiffs’s case on which they adduce evidence from experts that there are particularly defective parts of the building, then the defendants do need to know where those particular defects are said to be in order to meet the plaintiffs’ case. Ms Thorn’s reference to how many documents are involved (27 plans that were approved by the Council and 17 pages of specification) is not a justification for avoiding particularisation. If particular defects are to be relied upon by the plaintiffs at trial, it is appropriate that they be identified now and not through the exchange and giving of evidence. The very fact that there are considered by the plaintiffs to be many pages of documentation may in fact be seen as an argument in favour of particularisation - other parties should not be impeded in their endeavour to understand the particular case they have to meet by the sheer volume of documentation they have to digest.
[89] None of this cuts across the plaintiffs’s duty, if they have expert evidence to support it, to assert that an aspect of defective design arises in relation to the design of the buildings as a whole. But, if there is to be allegation that there are also particular defects, then particulars of those ought to be given. That will be directed in the order I make.
Paragraph 23(b) – request 3
[90] The Council seeks an order that the plaintiffs, in relation to each of the defects, give particulars of how the construction is said to be non-compliant with the
Building Code clauses stated in various sub-paragraphs of paragraph 23 of the statement of claim.
[91] In her submissions, Ms Rice illustrated the plaintiffs’ concern and suggested a solution by reference to particular items in Schedule 3 of the claim. She referred for example to Item 8 in Schedule 3 (referring to an exterior cladding system defect said to be that the joint details of the sheet is a butt-joint with sealant without backing to the balustrades allowing moisture penetration into the timber at the joint line), Ms Rice asked rhetorically whether that is a breach of the Code, a breach of technical literature and/or a breach of the workmanship standards expected?
[92] Ms Thorn, for the plaintiffs, had responded to this request (and others) with her proposed amendment to Schedule 3 of the statement of claim, as illustrated by the three pages of the sample which are attached as Schedule 6 to this judgment. When completed, that amended Schedule would identify which standard or standards are alleged to have been breached.
[93] This, in my judgment, constitutes an appropriate provision of particulars and meets the reasonable needs of the particular examples given by Ms Rice in her submissions. It arguably does not go so far as explaining in terms of the express question in request 3 – “how the construction is said to be non-compliant” - in that it does not spell out precisely how the departure from the standard has occurred. To the extent it is possible to categorise some matters as essentially matters of evidence rather than pleading, I view any implicit request for anything beyond the identification of a standard breached as going into matters which can properly be left for evidence. The identification of the particular standard breached is sufficient to inform the defendants of the case they have to meet.
Paragraph 23(c) – request 4
[94] The Council seeks an order that the plaintiffs identify how each of the alleged defects does not comply with Provisions of the New Zealand Building Code Acceptable Solutions as pleaded in paragraph 23 of the statement of claim.
[95] In her submissions in relation to this request, Ms Rice used the same examples as she had used in relation to request 3.
[96] Ms Thorn’s submissions in response were accordingly encompassed by her
response to request 3 and referred to her proposed amended Schedule 3.
[97] For the same reasons as discussed in relation to request 3, I find the specific identification of three provisions in the New Zealand Building Code acceptable solutions as standards which have been breached as sufficient particularisation.
Paragraph 23(c)(iv) – request 5
[98] The Council seeks an order that the plaintiffs give particulars of the acceptable standards of good trade practice and workmanship at the time of construction applicable to each of those alleged defects said to represent construction contrary to the specified acceptable standards.
[99] Again, the submissions on this request paralleled those in relation to requests
3 and 4.
[100] I adopt my previous conclusion in relation to breaches to 3 and 4 that identification of the breached standard in the manner proposed in Ms Thorn’s amended Schedule 3 will provide sufficient particularisation. The “how” aspect of the request, not covered by Ms Rice’s two particular examples, is in this case appropriately a matter for evidence.
Paragraph 23(c)(v) – request 6
[101] The Council seeks an order that the plaintiffs give particulars of the various items of technical literature at the time of construction applicable to each of the defects and how those alleged defects are said to be contrary to the specified technical literature.
[102] Once again, the previous discussion in relation to requests 2, 3, 4 and 5 applies. Ms Thorn’s proposed amendments to Schedule 3 are to appropriately identify the various technical literatures. Beyond that, it is not appropriate to order further particulars in relation to the “how” question.
Paragraph 24 – request 7
[103] This particular goes to the question of damage.
[104] The Council seeks an order that the plaintiffs give particulars of how and where each of the alleged defects is said to have resulted in water leaking into concealed framing causing severe decay of the timber framing and/or bottom plates and/or establishment of fungal infection and the location(s) of such severe decay and/or fungal infection.
[105] There is a parallel in the consideration of this request with that of request 2 (relating to design defects).
[106] For the Council, Ms Rice refers to the previous request by the Council that the owners specify how each defect is said to have caused physical damage to the building. She submits that, as the pleadings stand, it is not clear whether the plaintiffs’s case is that the defects have caused physical damage (and, if so, to what extent). Ms Rice illustrates the point by referring to an allegation of “inadequate window flashing”. Even if such inadequacy is proved, it may well not be relevant to damage if it has not in the past and will not in the future allow moisture into the building and is therefore performing in accordance with the weather tightness aspects of the Code.
[107] As with request 2, Ms Thorn’s response was partly by reference to the proposition that the defects have comprehensively caused damage and partly by reference to the sheer volume of material relating to damage. In particular, Ms Thorn submitted that it was not possible for the plaintiffs to pinpoint each and every location where the defects have caused water to enter the concealed framing. She also submitted that it is not possible to specify which particular defect caused the
pleaded damage. She asserts that in many or most locations there are multiple causes. She notes that in terms of the extent of damage, it is the plaintiffs’case that all of the frame has decayed and that the apartments as a whole are contaminated, with Unit 5A being contaminated to such an extent that nobody has lived in it for approximately two years.
[108] Ms Thorn observed that the Council’s experts may have carried out one dozen inspections to the apartments over the last two years. She submits that the request is more properly the subject of expert evidence to be exchanged prior to trial.
[109] For similar reasons to those I have given in relation to request 2, I do not consider that Ms Thorn’s submissions cut across the plaintiffs’ duty, if their expert evidence is to identify particular defects causing particular damage, to plead those particulars. On the other hand, if the plaintiffs’ expert evidence is to be that a group of defects or all the defects contributed to, or may have contributed to the damage, then the plaintiffs are equally able to plead that assertion. In a sense, it is a matter of how particularly the plaintiffs’ experts have been able to identify the cause of defects.
[110] The order I make in relation to this request will accordingly be parallel in relation to that request 2.
Paragraph 25(a)(ii) – request 8
[111] The plaintiffs, at paragraph 25, quantify their alleged losses.
[112] Under paragraph 25(a)(ii) there is reference to rectification of structural, tanking and membrane issues (the second of those being the subject of a typographical error in the claim as present stated). The cost of those three sets of issues is pleaded to be “currently estimated to be $300,000”, but to be further particularised once further details are available prior to trial.
[113] By this request, the Council seeks particulars of the structural, tanking and membrane issues respectively.
[114] I will discuss this request in conjunction with the next.
Paragraph 25(a)(ii) (second issue) – request 9
[115] The Council seeks particulars of the proposed scope of rectification of the structural, tanking and membrane issues respectively.
[116] Ms Rice identifies the particular concern of the Council as first defendant in this way:
The Council may concede at or before trial that it is responsible for the existence of some defects but not others. Unless the Council is aware of the alleged quantification of the claim which arises specifically in relation to a particular defect the Council is unable to adequately identify the quantum of the claim that it might accept and that which it may deny.
Furthermore, submits Ms Rice, the apportionment of rectification costs between the different defects may impact upon matters such as an affirmative defence of betterment.
[117] Ms Thorn’s submissions did not substantially take issue with the potential relevance and significance of the apportionment of costs. There were again two themes to her response. The first was that the three sets of problems are inter-related and that it is “not possible to separate costs” as between those three problems. The second theme of Ms Thorn’s submissions was that provision of the requested detail is premature. She said, in relation to the scope of works, that such information is still to be provided by the plaintiffs’s experts (including Dr Feasey and Mr Casey). She said that the experts have already provided some advice as to the general nature of the extent of rectification required, but not the precise scope or nature of how the rectification will be carried out. She says that the plaintiffs are not in a position to provide particulars of the specifics, even were the Court to order them.
[118] There is the likelihood, as has been the case with two earlier requests, that the plaintiffs’s case may well involve the proposition that some rectification costs are to be attributed to all three problems. The plaintiffs are entitled to plead that in relation to the rectification costs in question. But where the plaintiffs’s evidence is to be that
particular costs arise from only one or two of the three issues, then such particulars can and should be provided. It is likely to be the case that the scoping information and evidence of the plaintiffs will continue to evolve as evidence is exchanged. But the plaintiffs are coming to the point nine months after this litigation was commenced, and a full two years after their statement of claim was filed in the Tribunal, where they must be able to state at least the approximate quantification of rectification costs in relation to particular work. After all, they seek a trial and they have undertaken in their pleading that these rectification costs will be further particularised once further details are available prior to trial. This is the time, prior to trial, when all parties need to be preparing their briefs of evidence. The plaintiffs need to be providing the promised amended pleading so that the defendants’ counsel can properly understand the issues for trial, the particular areas of expertise needed, and brief their experts in relation to the allegations.
[119] For these reasons, there will be orders as to the particulars sought. The Court does not look to the plaintiffs to provide precise figures, if the expert advice is that an approximation or a range must be given. But the information which can be particularised and ought to be provided in a pleading is information of the nature on which the plaintiffs are likely to base their case at trial. The plaintiffs will know that if their evidence remains generalised and unspecific at trial, then they are likely to succeed, if successful on liability, only at the lower end of their approximations.
Paragraph 25(a)(iii) – request 10
[120] In paragraph 25(a)(ii) of the statement of claim, the plaintiffs allege that the cost of rectifying the mechanical engineering and condensation issues (including remedial solution relating to condensation issues) is $500,000.
[121] By this request, the Council seeks particulars of the mechanical engineering issues and of the condensation issues respectively.
[122] I will discuss this request in conjunction with the next.
Paragraph 25(a)(iii)(second request) – request 11
[123] By this request, the Council seeks an order that the plaintiffs give particulars of the proposed scope of rectification for the mechanical engineering and the condensation issues respectively. These two requests in relation to paragraph
25(a)(iii) are directly parallel to the previous two requests in relation to paragraph
25(a)(ii). The same considerations arise. There will therefore be the same orders.
Paragraph 25(c) – request 12
[124] The Council seeks an order that the plaintiffs give particulars of the loss claimed by each second plaintiff in respect of:
(a) Loss of rental income and/or alternative accommodation; (b) Cost of funding the repairs cost;
(c) Relocation costs; (d) Furniture removal; (e) Storage;
(f) Insurance relating to the repairs; and
(g) Cleaning and other miscellaneous costs.
[125] In the statement of claim these have been identified as consequential losses incurred by the plaintiffs and “not estimated to be less than $416,037”, which I take to mean estimated to be not less than $416,037. As with paragraph 25(a)(ii), the plaintiffs plead that they will provide further particulars, once available, and prior to trial.
[126] Ms Thorn, for the plaintiffs, did not address submissions in opposition to this request.
[127] I recognise that with repairs yet to be effected, a number of the claimed consequential losses can only be provided as estimates. That said, some of the heads of loss may already be capable of precise quantification. Others must be capable of some measure of estimation given that the plaintiffs have already referred to such a specific figure as “$416,037”.
[128] Further particulars are appropriate either on a specific or an estimated basis, broken down to each category of consequential loss. There will accordingly be an order to that effect.
Paragraph 29(a) – request 13
[129] The Council seeks an order that the plaintiffs give particulars of alleged insufficiencies in the plan(s) and specifications and how each alleged insufficiency was contrary to the Building Code.
[130] This request is parallel to request 2 (in relation to paragraph 22)16 in which the Council sought an order in relation to alleged design defects.
[131] I adopt what I have said in relation to that request.17
[132] Particulars will accordingly be ordered.
Paragraph 29(b) – request 14
[133] The Council seeks an order that the plaintiffs provide particulars of the additional inspections which they allege the Council should have carried out.
[134] Ms Thorn succinctly submitted in response to this request that the plaintiffs’
allegation is that the Council needed to carry out such inspections that the defects
pleaded did not exist. In other words, it is the thrust of the plaintiffs’ case that it is
16 Above at [85]-[89].
17 At [85]-[89].
the proper effecting of inspections rather than a particular number of inspections which would have prevented the existence or continuation of the defects and damage which resulted. When the references in paragraph 29(b) to the concept of “sufficiency” are considered, the Council has sufficient understanding of the plaintiffs’ case to plead to it and to meet it. This is particularly so when the plaintiffs have provided their five particulars (at 29(b)(i)-(iv)) as to the extent to which the inspections were “insufficient”.
Paragraph 29(b)(i) – request 15
[135] The Council seeks an order that the plaintiffs give particulars, in respect of each of the alleged defects, of what it is alleged a reasonable skilled and prudent inspector should have identified as being non-compliant with the Building Code and what date it is alleged such inspector would have made the identification in question.
[136] Ms Rice, in her written submissions, did not address this request specifically.
[137] Ms Thorn defended the pleading in the statement of claim upon the basis that the case the Council has to meet is clear – the Council should have identified the defects at the time the inspections were carried out and a prudent inspector should have identified all of the defects pleaded.
[138] I accept Ms Thorn’s submission in this regard. The current pleading
sufficiently identifies the issues for both parties to prepare for trial.
Paragraph 29(b)(ii) – request 16
[139] The plaintiffs allege as a particular of the insufficient inspections carried out by the Council that the Council failed during the course of its inspection to identify variations to the issued building consent and failed to request that such amendments be submitted for approval. The Council seeks an order that the plaintiffs give particulars of the alleged variations to the building consent and how and where each variation is said to have caused damage. Again, Ms Rice’s written submissions did not address this request. I make no order in relation to it.
Paragraph 29(b)(v) – (first request) request 17
[140] At paragraph 29(b)(v), the plaintiffs particularised the allegation of insufficient inspections by pleading that the Council had failed to identify the design, could not comply with the Building Code in terms of E(3), G(4) and H(1) and that the Council knew, or ought to have known, that the design could not perform in terms of allowing for condensation in a residential building.
[141] The Council seeks an order that the plaintiffs provide particulars of how and where the design did not comply with the Building Code.
[142] I have examined two parallel requests (requests 2 and 13).18 To the extent that the Council has sought particularisation of defects, I have found that it is appropriate that there be further particularisation, including by reference to the provision in the Code of the standard which has been breached.
[143] Ms Thorn submits that it goes too far in terms of pleading requirements to require the plaintiffs in addition to identify why or how the defective design does not comply with a particular provision of the Building Code. I accept that submission. The detailed explanation of how the non-compliance arises is reasonably a matter to be explained and developed in evidence. The defendants have sufficient detail of the basis of the plaintiffs’ claim to meet it by pleading and to obtain evidence.
Paragraph 29(b)(v) (second request) – request 18
[144] By this request, the Council seeks particulars of how the design is alleged not to perform in terms of allowing for condensation. As with the previous request in relation to the same set of particulars, I find that this request goes beyond what is reasonably required by way of pleading. The Council knows from this pleading that it is the plaintiffs’ case that the Council knew, or ought to have known, that the
design could not perform in terms of allowing for condensation in a residential
18 Above at [85]-[89] and [129]-[132].
building. The plaintiffs, in paragraph 29(b)(v), have already particularised the provisions of the Building Code which are alleged to have been breached. Further particulars to be provided by the plaintiffs will identify the relevant category of defect in relation to each breach of standard or code. The plaintiffs have sufficient in the pleading of paragraph 29(b)(v) to plead in response to the allegation made and to prepare their evidence as to the plaintiffs’ allegation.
Prayer for relief C – request 19
[145] The plaintiffs plead that the Council has been negligent. They do not plead facts or circumstances of the nature required to be pleaded to give rise to a claim for exemplary damages. In particular, they do not plead outrageous wrongdoing or similar misconduct.19 Yet at Prayer C of the claim against the first defendant, there is a claim for exemplary damages of $100,000. Responsibly, the Council (having sought a considerable number of other particulars) has chosen to deal with the
plaintiffs’ pleading in this regard by way of a request for further and better
particulars, rather than a strike out of that aspect of the claim.
[146] The pleading as it stands is plainly deficient. There is nothing in the pleading itself to justify the prayer for exemplary damages.
[147] There will accordingly be a direction in relation to a further pleading in that regard, along with an unless order should there be filed no relevant amendment to support the claim for exemplary damages.
Costs
[148] The Council has had a significant measure of success in the application for further and better particulars. There is no reason not to deal now with the cost of this application. I leave it in the first instance to counsel to seek to resolve these costs,
with leave to file memoranda (no more than three pages) if unable to agree. My
provisional view is that costs should, following the event, be payable to the Council on a 2B basis with a certificate for the reasonable disbursements of travel (but no certificate for second counsel).
Order
[149] I order (references to “the claim” being to the statement of claim dated 26
June 2012) –
1. In relation to paragraph 22 of the claim, identify from the defects set out in schedule three to the claim (6 pages) and part 15 WHRS assessor’s report 8 July 2008 [sic] 3 December 2010 (pages 46-63 inclusive) the alleged:
(i) Design defects;
(ii) Construction defects; and
(iii) Mechanical engineering defects.
2. In the event the plaintiffs’ case is to involve evidence that particular design defects have caused particular damage, identify with respect to the design defects pleaded in paragraph 22 and particularised in response to paragraph 1 above and with reference to the plan(s) and/or the paragraph(s) from the specification the defective details.
3. In relation to paragraph 23(b) of the claim, in respect of each of the alleged:
(i) Design defects;
(ii) Construction defects; and
(iii) Mechanical engineering defects.
give particulars of how the construction is said to be non-compliant with the building code clauses stated at paragraph 23(b)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix) of the claim.
(The plaintiffs in providing these particulars may use the form of sample pages which appear as Schedule 6 to this judgment).
4. In relation to paragraph 23(c) of the claim give particulars of how each of the alleged:
(i) Design defects;
(ii) Construction defects; and
(iii) Mechanical engineering defects.
(The plaintiffs in providing these particulars may use the form of sample pages which appear as Schedule 6 to this judgment).
5. In relation to paragraph 23(c)(iv) of the claim give particulars of the acceptable standards of good trade practice and workmanship at the time of construction applicable to each of the alleged :
(i) Design defects;
(ii) Construction defects; and
(iii) Mechanical engineering defects.
(The plaintiffs in providing these particulars may use the form of sample pages which appear as Schedule 6 to this judgment).
6. In relation to paragraph 23(c)(v) of the claim give particulars of the various technical literatures at the time of construction applicable to each
of the alleged:
(i) Design defects;
(ii) Construction defects; and
(iii) Mechanical engineering defects.
(The plaintiffs in providing these particulars may use the form of sample pages which appear as Schedule 6 to this judgment).
7. In the event the plaintiffs’ case is to involve evidence that particular defects have caused particular damage through water leaking, with respect to the defects pleaded in paragraph 22 and particularised in response to paragraph 1 above, give particulars of how and where each defect is said to have resulted in water leaking into concealed framing causing severe decay of the timber framing and/or bottom plates and/or establishment of fungal infection and the location(s) of such severe decay and/or fungal infection.
8. In relation to paragraph 25(a)(ii) of the claim, give particulars of the costs of:
(i) Structural issues; (ii) Tanking issues; and (iii) Membrane issues.
9. Further in relation to paragraph 25(a)(ii) of the claim, give particulars of the proposed scope of rectification of the:
(i) Structural issues; (ii) Tanking issues; and
(iii) Membrane issues.
10. In relation to paragraph 25(a)(iii) of the claim, give particulars of the costs of the:
(i) Mechanical engineering issues; and
(ii) Condensation issues.
11. Further in relation to paragraph 25(a)(iii) of the claim, give particulars of the proposed scope of rectification of the:
(i) Mechanical engineering issues; and
(ii) Condensation issues.
12. In relation to paragraph 25(c) of the claim, give particulars of the loss claimed by each second plaintiff in respect of :
(i) Loss of rental income and/or alternative accommodation; (ii) Cost of funding the repairs cost;
(iii) Relocation costs; (iv) Furniture removal; (v) Storage;
(vi) Insurance relating to the repairs; and
(vii) Cleaning and other miscellaneous costs.
13. In the event the plaintiffs’ case is to involve evidence that particular insufficiencies in the plan(s) and specifications and/or breaches of the building code have caused particular damage, give particulars of the
alleged insufficiencies or breaches as referred to in paragraph 29(a) of the claim.
14. No order.
15. No order.
16. No order.
17. In the event the plaintiffs’ case is to involve evidence that particular non- compliance with the Building Code has caused particular damage, give particulars with respect to the non-compliance allegations in paragraph
29(b)(v) of how and where the design did not comply with the Building
Code:
(a) E(3); (b) G(4); (c) H(1).
18. No order.
19. If the plaintiffs propose to pursue exemplary damages, they are to provide within their pleadings proper (and not merely by reference in the prayers for relief) the factual allegations upon which they will rely to establish an entitlement to exemplary damages.
Allocation of trial date
Discussion
[150] In this case, the interest of the plaintiffs in a prompt trial does not arise simply out of an interest in prompt (or as r 1.2 High Court Rules puts it “speedy”) resolution. The plaintiffs are dealing with the apparent contamination of at least one,
if not two apartments. In light of the objective of the proceeding – to obtain funds required for repair – they have a strong argument for some degree of acceleration of trial date. This legitimate interest is to be balanced against the Council’s desire to conduct the testing which the Council’s experts consider appropriately timed and thorough.
[151] In my judgment, the availability of a late-November trial (as against the plaintiffs’ strongly-preferred September date) constitutes the appropriate means by which to balance the parties’ interests –
(a) The Council’s testing, to commence shortly, will have run for six months by late-September. That six-month period is at the lower end of the six-to-eight month period identified by Dr Powell in his second affidavit.
(b) The 25 November 2013 trial date suggests a pre-trial timetable of the following nature:
Close of pleadings date – 16 August 2013
Plaintiffs’ briefs – 13 September 2013
Defendants’ briefs – 11 October 2013
Conference of experts (if ordered by Trial Judge) – 4
November
2013
(c) The plaintiffs’ expert evidence was to the effect that the only significant testing results will be those obtained up to the end of July.
(d) I am allocating a 25 November 2013 trial date (as preferred by the plaintiffs in preference to a 2014 trial) with a timetable date for plaintiffs’ evidence of 13 September 2013, the plaintiffs’ experts will have the results of the Council’s testing well beyond the July date which those experts contended for. They will have the benefit (or
otherwise) of some extra months’ results beyond July. At the same time, an 11 October 2013 timetable date for the defendants’ evidence will mean that the defendants are likely to have the results for the first six months of testing (that is the results to late-September) when their briefs are completed. Assuming the Council’s experts then elect to continue testing to the end of October, appropriate directions can be made for the updating of the experts’ evidence to take supplementary results into account before trial.
(e) If the Trial Judge were to order a pre-trial conference of experts approximately three weeks before trial, the likelihood is that the experts would be conferring in light, not only of their respective briefs of evidence, but also in light of results to late-October.
[152] I acknowledge that upon the basis of the information as to the availability of counsel provided to the Deputy Registrar, the 25 November 2013 trial date may well mean that the Council is not able to have its preferred senior counsel appear at the hearing. I have balanced the competing interests. I do not consider that great weight can be attached to the Council’s preference of counsel when compared to the implications of a trial approximately three or four months later than that which the Court can allocate. By having a trial in November rather than September, which was the first date which the Registrar could have allocated, the Council (and indeed, other parties) have eight months at this point in which to identify senior counsel
available to lead on a two-week trial.20
Order
[153] I allocate a trial of this proceeding commencing 10.00 am, 25 November
2013 (two weeks reserved).
Associate Judge Osborne
Solicitors:
A J Thorn - Email: adina@adinathorn.co.nz
Heaney & Co - Email: hmr@heaneyco.com / ach@heaneyco.com
M L Hillary (in person) - Email: mjhillary@xtra.co.nz
Duncan Cotterill - Email: d.mcgill@duncancotterill.com /k.white@duncancotterill.com
P S Morrison - Email: Cairn9@xtra.co.nz
SCHEDULE 2
SCHEDULE 5
SCHEDULE 6
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