Walker v Bale [2012] NZHC 1718 (16 July 2012)

Last Updated: 26 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-044-2721 [2012] NZHC 1718

BETWEEN ISOBEL ANNE WALKER, ALISON CLAIRE MACMILLAN AND DIANE WARDILL AS TRUSTEES OF THE SCIWI FAMILY TRUST

Plaintiffs

AND RONALD FRANK BALE AND JOAN NORMA BALE

First Defendants

AND RONALD FRANK BALE AND JOAN NORMA BALE AS TRUSTEES OF THE BALE FAMILY TRUST OF AUCKLAND, TRUSTEES

Second Defendants

Hearing: 9 July 2012

Appearances: Mr Rainey for Plaintiffs

Ms Trotman for Defendants

Judgment: 16 July 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Strike out application]

This judgment was delivered by me on

16.07.12 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Counsel:

Rainey Law, Shortland Street, Auckland

_{J M Trotman, Barrister, Silverdale}

WALKER & ORS V BALE & ORS HC AK CIV-2008-044-2721 [16 July 2012]

Background

[1] The defendants in this proceeding have filed an application to strike out parts of the plaintiffs’ statement of claim. Having regard to the nature of the application, the Court is required to assume that the plaintiffs will be able to prove the allegations asserted in the statement of claim. Consistent with that approach, the statement of the relevant background which follows is substantially based upon the submissions filed by counsel for the plaintiffs which in turn reflect the allegations in the statement of claim.

[2] The current iteration of the statement of claim is the first amended statement of claim. There was some discussion before me about whether there had in fact been four predecessor statements. That issue is relevant to the limitation argument which is what this judgment is substantially concerned with. I shall refer again to this issue subsequently.

[3] This proceeding concerns a residential property at 31 Ocean View Road, Hatfields Beach, Orewa.

[4] The property was purchased by the defendants in 1987 and substantially renovated by them in 1988/89. From 2001 until 2004 further building work was undertaken to the house to address defects in the deck and other parts of the first floor extension which had resulted in moisture ingress. The plaintiffs allege that work was undertaken without a building consent.

[5] In 1994 the defendants obtained resource consent to subdivide the property. That subdivision was completed in 1999 and in 2005 the defendants built a new home on the subdivided section which they have retained as their home.

[6] The plaintiffs purchased the property from the defendants pursuant to an agreement for sale and purchase of real estate dated 25 November 2005. The terms of the agreement were contained in a document called “Sale of Real Estate by Tender” prepared by Barfoot & Thompson as agent for the defendants.

[7] Included in the agreement in the general terms of sale under the heading “Title, Boundaries and Requisitions” there was an acknowledgement that the purchaser had inspected the property and was relying on the purchasers own judgment and not in reliance on representations by the vendor or the vendor’s agent.

[8] The agreement was conditional on the plaintiffs obtaining a satisfactory building report within 5 days of acceptance. To satisfy this condition a report was obtained from Buy Smart Limited which is exhibit “O” to Mr Bale’s affidavit. The plaintiffs assert that the written report was not in fact obtained until after the agreement to purchase the property had been made unconditional. Before the agreement became unconditional Ms MacMillan had a verbal discussion with the inspector. She deposes that she was not aware of the defects which are the subject of the statement of claim prior to the plaintiffs becoming the owners of the property. That is an unusual aspect of the factual circumstances which may or may not be challenged subsequently if the matter is to go to trial. However, based upon the evidence which has been filed on the strike out application, I accept that what is stated is correct for the purposes of this application.

[9] The purchase of the property was settled on 25 November 2005 and the plaintiffs became the owners.

[10] The plaintiffs have three complaints in respect of the property that they purchased from the defendants.

[11] Firstly the plaintiffs allege that the building work undertaken by the defendants was defective and was not completed in accordance with the relevant building permits and/or without a building consent. These allegations give rise to three causes of action.

[12] The first cause of action alleges that the defendants caused or permitted the building work to be carried out and that as a consequence the defendants are caught by the standard vendor warranties in the agreement for sale and purchase of real estate, that is clause 13.2 (5);

[13] The second cause of action alleges that the defendants made specific representations regarding the quality of the property in response to specific questions put by the second named plaintiffs during an inspection of the property prior to the plaintiffs entering into the agreement to purchase the property. The plaintiffs allege that those representations were relied on by them in entering into the agreement to purchase the property and that those representations are actionable misrepresentations under s 6 of the Contractual Remedies Act.

[14] The third cause of action alleges that the defendants were negligent in relation to the work that they carried out between 16 January 1987 and 25 November

2005. That work included:

i) The repairs to the decks which were completed on a date after

4 November 2001;

2. The drainage works to the property which were completed in or about 2005 which are defects related to the nuisance action.
   

[15] The fourth cause of action alleges that in April 2006 storm water from the defendants’ property escaped onto their property causing damage. The plaintiffs say that this flood was as a consequence of inadequate drainage work undertaken by the defendants to the property at 31A Ocean View Road and that the loss caused as a consequence of this flood is an actionable nuisance. The damage caused by this nuisance was exacerbated by the allegedly negligent drainage work undertaken by the defendant to the property prior to its sale to them in 2005.

[16] Finally the plaintiffs allege that plants on the defendants’ property are unreasonably interfering with the view that they previously enjoyed from the property. This gives rise to two further causes of action:

1. The fifth cause of action alleges representations made by the plaintiffs regarding the view; and

b) The sixth cause of action which alleges that the trees constitute an ongoing nuisance or alternatively asking the Court to make orders pursuant to Section 333 of the Property Law Act regarding the trees.

Strike out principles

[17] Ms Trotman submitted:

3. The principles to be applied in an application to strike out pleadings under High Court Rule 15.1 are as set out in Attorney-General v Prince and Gardner and endorsed by the Supreme Court in Couch v Attorney-General.

In summary:

3.1 Pleaded facts, whether or not admitted, are assumed to be true;

3.2 The cause of action must be so clearly untenable that it cannot possibly succeed;

3.3 The jurisdiction is to be exercised sparingly, and only in clear cases;

3.4 The jurisdiction is not excluded by the need to decide difficult questions of law; and

3.5 The courts should be slow to strike out a claim in a confused or developing area of law.

[18] I agree with that summary of the principles applicable to strike out applications.

The strike out application

[19] The defendants initially sought to strike out the entire proceeding. They have now narrowed the application and seek only to strike out the second, third, fourth and fifth causes of action which are pleaded in the fifth amended statement of claim.

[20] The basis on which it is alleged that the Court can strike out those causes of action can be summarised as follows:

a) In respect of the second and fifth causes of action (those based on misrepresentation under Section 6 of the Contractual Remedies Act)

the defendants say that the causes of action cannot succeed because of the effect of clause 12.2(4) of the sale and purchase agreement;

b) In respect of the third and fourth causes of action, the defendants say that they have a limitation defence and that the defence is so clear that the proceeding can be struck out as an abuse of process: see Murray v Morel & Co Ltd at [33].[1]

c) In respect of the second and fifth causes of action (those based on misrepresentation under Section 6 of the Contractual Remedies Act) the defendants say that the causes of action cannot succeed because of the effect of clause 12.2(4) of the sale and purchase agreement.

Misrepresentations

[21] The plaintiffs plead two misrepresentations: the first, summarised, was whether the home was leaking or had anything else wrong with it – the response to which from the defendants was that there was not. The second, in summary, related to trees on the defendants’ adjoining property impeding the property’s view. It is alleged that the defendants said that the plants would be cut back to preserve the view.

[22] Paragraph 1.12 of the application to strike out is to the following effect:

The plaintiffs were not induced and did not rely on the alleged misrepresentations when purchasing the property as expressly provided in clause 12.2 (4) of the sale and purchase agreement dated 20 October 2005.

[23] The defendants say that the claim based upon misrepresentations cannot succeed because of clause 12.0 of the agreement for sale and purchase, the relevant part of which provides:

(4) The purchaser acknowledges that the purchaser has inspected the property and that the purchaser purchases the same solely upon the purchaser’s own judgement and not in reliance upon any representation of the vendor or the vendor’s agent

[24] Mr Rainey’s primary submission concerning the effect of clause 12 was that the scope of the clause was limited to matters of title, boundaries and requisitions as suggested by the heading to the part of the agreement in which the clause appears. He drew attention to the fact that the heading to the relevant section of the agreement for sale and purchase reads:

Title Boundaries And Requisitions

[25] In Mr Rainey’s submission clause 12.0 did not exclude liability for representations made about matters such as whether the house was weathertight. Mr Rainey submitted that there were historical reasons why such a provision relating to issues of title were included in the standard form agreement. It had come about, he said, because at common law a party transferring title was liable for any costs that might be incurred in securing the necessary title to the transferee. I understand that his submission reflects the fact that the insertion of clause 12.0 came about because the common law requirement became redundant because of the assurance of title which is provided by the registration system which New Zealand had adopted and which is currently embodied in the Land Transfer Act 1952. The provision was not, in Mr Rainey's submission, intended to apply to representations on quite unrelated matters such as whether a building was weathertight.

[26] Ms Trotman argued that the provision was not to be read down in the way that Mr Rainey suggested and that to do so would be to ignore the plain wording of the clause.

[27] My conclusion, briefly stated, is that I would not be prepared, on the basis of the limited argument that I heard and the absence of reference to case law and other matters of background which would inform the correct meaning of clause 12 to strike out the plaintiffs’ claim.

[28] By way of additional argument, Mr Rainey referred me to s 4 of the

Contractual Remedies Act 1979 which provides:

4 Statements during negotiations for a contract

(1) If a contract, or any other document, contains a provision purporting to preclude a Court from inquiring into or determining the question—

(a) Whether a statement, promise, or undertaking was made or given, either in words or by conduct, in connection with or in the course of negotiations leading to the making of the contract; or

(b) Whether, if it was so made or given, it constituted a representation or a term of the contract; or

(c) Whether, if it was a representation, it was relied on—the Court shall not, in any proceedings in relation to the contract, be precluded by that provision from inquiring into and determining any such question unless the Court considers that it is fair and reasonable that the provision should be conclusive between the parties, having regard to all the circumstances of the case, including the subject- matter and value of the transaction, the respective bargaining strengths of the parties, and the question whether any party was represented or advised by a solicitor at the time of the negotiations or at any other relevant time.

(2) If a contract, or any other document, contains a provision purporting to preclude a Court from inquiring into or determining the question whether, in respect of any statement, promise, or undertaking made or given by any person, that person had the actual or ostensible authority of a party to make or give it, the Court shall not, in any proceedings in relation to the contract, be precluded by that provision from inquiring into and determining that question.

[29] Based on that section, he said it was open to the Court to disregard clause 12 even if the Court determined that it extended to representations of the kind pleaded in this case.

[30] Ms Trotman’s submission was that the Court on hearing the present application could assume that s 4 of the Contractual Remedies Act 1979 would not protect the plaintiffs in the circumstances of this case. She submitted that it would not be fair and reasonable for the Court to go behind the exclusion clause. The first reason put forward in support of this submission in substance was that one of the plaintiffs, Ms MacMillan, is a barrister whose areas of practice are criminal and civil law. Such a person, in Ms Trotman’s view, should not appropriately be able to

escape the consequences of the contractual provision that she had adopted by invoking s 4. The defendants allege that it is inconceivable that a lawyer would rely upon the representations of a lay person. Secondly, Ms Trotman drew my attention to the fact that the plaintiffs had obtained a pre purchase inspection report (hereinafter referred to as “the Buy Smart Report”) on 31 October 2005 which warned of problems with the house. This was a further background fact that would weigh against the plaintiffs being able to invoke the provisions of s 4.

[31] In response to the first ground, Mr Rainey while accepting that Ms MacMillan was indeed a barrister by occupation submitted that there was no basis for suggesting that Ms MacMillan was a lawyer who specialised in providing advice on property acquisition. Mr Rainey also suggested that it was implicit in the submission for the defendants that Ms MacMillan was seen by the defendants as subject to a higher standard and ought to have known from visiting the house that it was a leaky home.

[32] As to the second point, Mr Rainey pointed out that the pre-purchase report only came to hand after the contract was made unconditional. Mr Rainey accepted that the Court will generally be reluctant to go behind an exclusion clause where it is contained within a commercial contract between commercial parties each with separate legal advice, as was the case in both Brownlie v Shotover Mining Ltd[2] and

PAE (New Zealand) Ltd v Brosnahan[3] relied upon by the defendants. He also said

that in the context of small parties or non-commercial transactions, the Courts show a tendency to exercise the statutory discretion[4] as noted in PAE (New Zealand) Ltd v Brosnahan at [16]. The point was also made for the plaintiffs that the parties have relatively equal knowledge with Ms MacMillan being a barrister and the first-named defendant Mr Bale being a retired chartered accountant with knowledge of contracts (having presumably drafted the Trust Deed for the second defendant). The vendors

had the significant advantage of knowing the property having lived in it for 18 years whilst the plaintiffs only visited the property for a short period on three occasions

_{over a one month period.}

[33] I accept that there is evidence that the plaintiffs did not receive the Buy Smart report before entering into the contract, although it would seem that Ms MacMillan had an oral discussion with the building surveyor before making the contract unconditional.

[34] For the plaintiffs, Mr Rainey referred to the fact that there was apparently a flood at the property some months before it was sold to the plaintiffs. The defendants say that they told the plaintiffs about this. The plaintiffs deny that they did. Mr Rainey argued that even if the building report had been seen in its entirety before the plaintiffs became committed to the transaction, that report was made in ignorance of the 2005 pre-purchase flood.

[35] My overall conclusion on this point is that the question of whether s 4 applies or not involves a weighing of competing circumstances and factors which could only be done after hearing evidence and submissions. I do not regard it as a point that can be properly resolved in the context of a strike out application.

Reliance

[36] A further submission made for the defendants was that even if there had been misrepresentations, the plaintiffs must establish the additional requirement that they entered into the contract in reliance upon the representations. It followed from the fact that they had obtained the Buy Smart report, that they did not rely upon the misrepresentations, Ms Trotman argued.

[37] I do not agree with that submission. It is a matter of fact whether the plaintiffs were influenced in their decision to enter into the contract by misrepresentations made. The part that the Buy Smart report played in their decision-making is one of the factors that will need to be considered when assessing the reliance issue. I would not be prepared to assume that because the plaintiffs obtained a building assessment report they were not in any way influenced by misrepresentations (if any) that the defendants made to them.

[38] As to the submission that a lawyer in the shoes of Ms MacMillan would not rely upon representations of a layperson, I agree that the Court might feel able to

draw such an inference but that is but one of the matters that would need to be considered in relation to the reliance point.

Limitation defences

Negligence

[39] The defendants’ seek to strike out the claims based on negligence and nuisance on the grounds that they have limitation defences.

[40] I accept that the Court should be guided by the following statement by Tipping J stated in Matai Industries Ltd v Jensen of the principles to be applied when the Court is asked to strike out a claim on Limitation grounds:[5]

In this case of course the defendants do not claim to strike out Matai's proceeding on the basis that the various causes of action asserted do not disclose reasonable causes of action as such. There are however references in the judgments of Stephenson and Donaldson LJJ to the appropriate procedure when a defendant considers that he has a good limitation defence. Their Lordships expressed the view that in such a case the proper course for a defendant to adopt is either to plead the defence and to seek trial of the defence as a preliminary issue or in a clear case to apply to strike out the plaintiff's claim on the grounds that it is frivolous, vexatious and an abuse of process. As was said by Donaldson LJ at p 966:

"Where it is thought to be clear that there is a defence under the Limitation Act, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim on the grounds that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed."

Stephenson LJ put the matter thus at p 968:

"There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out his claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the statute of limitation will be pleaded, the defendant can, if necessary, file evidence to that effect, the plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process and the court will be able to do in, I suspect, most cases what was done

in Riches v DPP [1973] 2 All ER 935, [1973] 1 WLR 1019, strike out the claim and dismiss the action."

The present defendants contend that this is a very clear case of claims barred by the Limitation Act and apply to dismiss the proceeding, inter alia, on that ground. The onus is clearly on the defendants to show that the plaintiff's claim, or at least some part of it, is statute-barred. Evidence can be tendered either way by affidavit, and that is what has occurred in the present case.

If the plaintiff in opposition to the defendants' proposition can show that it has a fair argument that the claim is not statute-barred or that the limitation period does not apply or is extended for any reason, then of course the matter must go to trial. To hold the interests of plaintiffs and defendants in fair balance in this context the Court should in my view be slow to strike out a claim or cause of action altogether in limine but against that, if the position is quite clear, then a defendant should not be vexed by having to go to full trial when the answer is obvious and inevitable. I turn now to consider the facts to see whether the defendants have shown that the plaintiff's whole claim or any part of it is doomed to failure because it is time-barred.

[41] Mr Rainey for the plaintiffs told me that his client has now accepted that their claim in negligence must be restricted to work done to the deck on the house and to the driveway which he said was not caught by the limitation period. He submitted:

To be clear, the allegations in the third cause of action relate only to the deck repairs, and the drainage works between the two properties which the defendants accept took place after 2001.

[42] The limitation issue is made rather more complicated because of the matters that counsel for the plaintiffs noted in his submission as follows:

45. The plaintiffs accept that their negligence claim was initially pleaded in the original statement of claim dated 1 December 2008 and was abandoned in the 3rd amended statement of claim filed on 10

February 2011.

46. However the negligence claim was reinstated in the 4th amended statement of claim filed on 28 March 2011. The defendants in fact pleaded to this claim as can be seen from the defendants’ statement of defence to fourth amended statement of claim filed on 28 April

2011.

[43] It is necessary to add some detail concerning the circumstances in which the fourth amended statement of claim was prepared. That statement of claim arose from circumstances in which the plaintiffs responded to a direction from the District Court Judge (the proceedings at that point still being in the District Court) requiring the plaintiffs to file a further draft amended statement of claim for the purposes of a

judicial settlement conference. The plaintiffs duly complied with that direction. Even although the document was noted as a “draft” on its face, there is evidence that it was accepted for filing and entered in the court register of documents maintained as part of the court’s records as though it were actually an amended statement of claim. A further significant circumstance is that the defendants filed a statement of defence to the draft. There are therefore some indications that the plaintiffs are correct when they contend that the negligence cause of action was reinstated, as they claim, when the draft amended statement of claim was filed 28 March 2011, which should therefore be the date from which limitation is counted back.

[44] However, this is not an issue which can be resolved on a strike out application. I am unable to conclude by way of a finding on the strike out application that the negligent construction cause of action was not so re-pleaded on

28 March 2011. For the purposes of argument therefore I will assume that the negligence claim was commenced not later than the date of the fourth amended statement of claim, 28 March 2011.

[45] It will be necessary to consider first whether the claim is statute barred under s 4 of the Limitation Act 1952. If it is not, it will be necessary to go on and consider whether it is outside the further limitation period enacted by s 393 of the Building Act.

[46] The relevant pleading which raises the matter of negligence commences with paragraph 34 which is to the following effect:

Between November 1998 and 25 November 2005 the defendants undertook subdivision and building works on the property and on their neighbouring property at 31 A Ocean View Road, Hatfields beach (“ neighbouring property”) as follows: -

(a) the repair of the building and deck including associated weather tightness repairs to the external cladding and drainage and;

(b) building and drainage works between the two properties,

(c) building and landscaping works in the construction of their new house on the neighbouring property.

[47] Accrual of the cause of action occurred at the point where the plaintiff suffered loss or damage. Weather tightness issues, like problems with foundations, will usually be latent in the sense that a detailed examination of parts of the building will be required to reveal them. Usually, too, only an expert examination will reveal the existence of faults in the building which compromise its weather tightness. But the existence of the weather tightness issue will often manifest itself in obvious ways such as through water staining, mould blistering paint etc. Even a non-expert may reasonably be expected to apprehend that there is a weather tightness problem when other than minor manifestations of this kind are present. In this case the plaintiffs’ say that they observed carpet damage attributable to dampness when they inspected the property in or about October 2005. On one view of it, those observations should have conveyed to a reasonable property owner (and though the plaintiffs were not then the owners they were shortly to become so) that water entry into the building was occurring. A persuasive case can be made that relevant loss occurred at the point when they acquired the property in November 2005. That is to say, if the plaintiffs are able to show that the filing of the document noted as “draft” fourth amended statement of claim is, in substance, to be treated as the equivalent of actually filing a fourth amended statement of claim, then the claim in negligence would have been commenced within six years of October or November 2005.

[48] Mention was also made of the long stop limitation period contained in s 393 of the Building Act. If the works in question were being carried out between the period 1998 to 25 November 2005 then inevitably parts of the construction will no longer be actionable because the 10 year period came into effect progressively from

2008 onward. On the other hand, if, for example, construction had been completed by the midway point between those two dates, that is by 2001, and assuming that the negligence cause of action was reinstated by the filing of the fourth draft 28 March

2011, then it may be that the s 393 period would not adversely impact the plaintiffs’

claim. Mr Rainey made a submission to the following affect:

To be clear, the allegations in the third cause of action relate only to the deck repairs, and the drainage works between the two properties which the defendants accept took place after 2001.

[49] I interpolate that Ms Trotman made the point that while the defendants accept that they can only claim in regard to the deck repairs and drainage works that took place after 2001, the particulars which the plaintiffs include with their negligence claim do not restrict the ambit of that claim to deck repairs and drainage works but include other works such as repairs to the external cladding of the house itself.

[50] But returning to this point, I note that there is uncertainty about the status of the fourth amended statement of claim and there is also uncertainty about when the deck repairs and drainage works took place which were a basis for the negligence claim. Because of these factual uncertainties, the limitation point relating to repair of the building and the deck cannot be resolved within the framework of the present strike out application.

[51] While my conclusion is that the defendants’ strike out application cannot succeed, the statement of claim is going to require amendment to bring it into line with Mr Rainey’s submission.

Nuisance claim

[52] The fourth cause of action is based on nuisance. The factual foundation for the claim is apparently that drainage and sewerage overflowed causing water ingress to the ground floor of the plaintiffs’ property. The cause of action in nuisance appears for the first time in the fifth amended statement of claim which was filed 4th November 2011.

[53] I was told that flooding was caused to the ground floor of the plaintiffs’ property on 29 April 2006. At the latest, this was pleaded 4 November 2011 and therefore ought not to be struck out on the basis of the information that the Court has before it at present.

[54] During the course of his submissions, Mr Rainey elaborated on this cause of action. He said that it was a conventional claim in nuisance which involved an allegation that the defendants permitted or caused a nuisance to emanate from their property which adversely affected the enjoyment by the plaintiffs of theirs.

[55] In her submissions, Ms Trotman pointed out that the assertion that the nuisance comprised an emanation from the defendants’ property is inconsistent with the plaintiffs’ statement of claim generally which particularise as the works which are said to have given rise to the emanation as having occurred on the plaintiffs’ property and not on that of the defendants.

[56] The point that Ms Trotman makes would seem to have considerable force. However it was not a ground upon which the defendants relied in their application to strike out and for that reason I do not think it is fair or reasonable to take into account when considering the application to strike out. It is a matter though that the plaintiffs will have to confront at some point.

[57] So far as limitation is concerned, the defendants’ provided evidence by way of an affidavit which asserted that there was an incident of flooding on 16 July 2005 which resulted from a burst water main. Mr Rainey submitted that flooding occurred in April 2006. He further submitted that the floods and loss suffered were a consequence of a state of affairs created by the defendants and arising out of inadequate drainage between the properties, the failure to repair the drainage and weather proofing to the ground floor following a flood in July 2005 and blockage of stormwater pipes between the two properties.

[58] The section of the statement of claim which first recites that drainage and sewerage overflowed causing water ingress to the ground floor does not mention a date when this occurred. In another part of the statement of claim which deals with representations it is said that flooding causing loss and damage had occurred three months prior to the date of sale to the plaintiffs, that is to say approximately July

2005.

[59] No doubt there will have to be close examination of the assertion that the plaintiffs are able to claim for loss following upon the infliction of damage to the property before they owned it. That is not an issue which rises for resolution in this case. The same can be said of the question of whether a failure to weatherproof the ground floor of the plaintiffs’ property has any relevance to a cause of action based in nuisance.

[60] The position concerning the nuisance cause of action is unsatisfactory. The plaintiffs must provide clear particulars of what event is relied upon as causing the nuisance and the date when that occurred. On the basis of the pleadings as they presently stand, though, I do not except that an order striking-out the pleading on the basis of limitation defences is justified.

Conclusion

[61] The strikeout application is dismissed. Counsel should confer on the matter of costs and if they are unable to agree on that issue should file and serve memoranda not exceeding four pages in length within 15 working days of the date of the judgment. On the question of costs, counsel might like to consider whether, notwithstanding a lack of success on the part of the defendants, the application has exposed at least one area where clearer pleading and additional particulars are called for.

[62] As to progress of this proceeding from this point forward, I would suggest that counsel confer and if possible file a joint memorandum on the matters now set out:

1. Timetabling of any additional interlocutory steps including filing of an amended statement of claim;
   

b) Witness numbers and trial duration;

_{c) Whether the parties require a JSC and the time estimate for same;}

J.P. Doogue

Associate Judge

---

[1] Murray v Morel & Co Ltd - [2007] 3 NZLR 721.
[2] Brownlie v Shotover Mining Ltd (Unreported CA 187/87, 21 February 1992).
[3] PAE (New Zealand) Ltd v Brosnahan [2003] NZCA 61; (2009) 10 TCLR 626.
[4] See Snodgrass v Hammington (1996) ANZ ConvR 598.

[5] See Murray v Morel & Co Ltd - [2007] 3 NZLR 721 applying Matai Industries Ltd v Jensen

[1989] 1 NZLR 525.