BODY CORPORATE NO 199348 AND ORS V NIELSEN HC AK CIV 2004-404-3989 [2009] NZHC 458 (28 April 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CIV 2004-404-3989



               BETWEEN                    BODY CORPORATE NO 199348 AND
                                          ORS
        
                                 Plaintiffs

               AND                        GREGORY CAMPBELL OLIVER
                 
                        NIELSEN
                                          Defendants


Hearing:       28 April 2009

Counsel:   
   C T Patterson for G Nielsen
               D G Heaney SC and C Goode for Auckland City Council and others

Judgment:      28 April
2009


                   (ORAL) JUDGMENT (NO. 2) OF HEATH J




Solicitors:
Heaney & Co, Auckland
Farry & Co, Auckland
Counsel:
C T Patterson, Auckland


BODY CORPORATE NO 199348 AND ORS V NIELSEN HC AK CIV 2004-404-3989 28 April 2009

[1]    This proceeding
arose out of the erection of a number of townhouses on a site
near Newmarket Park, now known as 3 Laxon Terrace. The building occurred
between May 1999 and January 2000. It transpired that, due to defective building,
severe water ingress occurred.


[2]    Body Corporate
199348 and the individual proprietors sued a number of
parties to obtain compensation for the damaged buildings. All defendants,
except Mr
Greg Nielsen and Mr Wayne Scarrott settled the claims. The Auckland City Council
took an assignment of the rights of the
Body Corporate and individual proprietors to
enable it to pursue claims against remaining defendants.         The claim proceeded
against Mr Nielsen.


[3]    In a judgment given on 3 December 2008, I held that Mr Nielsen was liable,
on the basis that he had
assumed personal responsibility for the oversight of
development work. The facts on which that decision was based and the legal
principles
that applied are set out fully in that judgment, which I incorporate by
reference.


[4]    Before the hearing, Mr Nielsen had sought
a number of adjournments of the
proceeding. The procedural history is set out fully in paras [10]-[17] of my earlier
judgment. In
my judgment, I directed that Mr Nielsen must file and serve any
application to issue cross claims together with an affidavit in support
on or before 30
January 2009: para [84].


[5]    The application was filed late. No affidavit in support has been filed and
served,
even as at today's date, some three months later.


[6]    In effect, this is an application for leave to issue the cross claim application
out of time. The controlling considerations are the interests of justice generally.


[7]    Usually, leave will be given if there
is a cause of action that a defendant can
properly pursue against joint tortfeasers.     But, the discretion may be exercised

against
the defendant if there has been prejudice or undue delay and alternative
remedies exist.


[8]    In my view, the delay by Mr Nielsen,
both in respect of procedural aspects
leading up to the substantive hearing in December 2008 and since 30 January 2009,
can be seen
as disentitling conduct. When one takes that into account against the
prejudice to other defendants who have settled claims with
the plaintiffs, it becomes
an insuperable hurdle for the exercise of the discretion in Mr Nielsen's favour.


[9]    Mr Nielsen also
has an alternative remedy. He remains in time to issue
separate proceedings against the defendants whom he wishes to sue. That, in
my
view, is the appropriate course of action for him to take.


[10]   It follows that the application for leave to bring the cross
claim application
out of time is dismissed. Accordingly, no cross claims may be issued in the present
proceeding by Mr Nielsen.


[11]   Costs are awarded in favour of the Auckland City Council, for whom
Mr Heaney SC acts, on a 2B basis together with reasonable
disbursements. Both
costs and disbursements shall be fixed by the Registrar.          Given the unusual
background which needed to
be traversed on the present application, I certify for
second counsel.


                                                         ________________________


                                                                          P R Heath J