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High Court of New Zealand Decisions |
Last Updated: 27 September 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2012-485-597 [2012] NZHC 2445
BETWEEN STEPHEN WILLIAM PLATT Plaintiff
AND PORIRUA CITY COUNCIL First Defendant
AND KEITH LATIMER Second Defendant
AND KEITH LATIMER AND CHRISTINE ELIZABETH LATIMER
Third Defendants
AND BERNARD VINES Fourth Defendant
Hearing: 5 September 2012
Counsel: M C Josephson with S J Baldwin for Plaintiff
P A Robertson for First Defendant
A V Williamson for Second and Third Defendants
J C Corry for Fourth Defendant
Judgment: 20 September 2012
JUDGMENT OF THE HON JUSTICE KÓS
[1] To what extent must a plaintiff in a leaky home case particularise his claim?
[2] Because of the ten-year longstop limitation period,1a modest tsunami of leaky home or building claim filings has occurred recently in the High Court. Many statements of claim are relatively rudimentary in detailing alleged building defects and the alleged responsibility therefor. Oftentimes that is because the owners are not
really sure. They know the house leaks. Some of the manifest causes and
1 Building Act 2004, s 393.
PLATT v PORIRUA CITY COUNCIL HC WN CIV 2012-485-597 [20 September 2012]
consequences of the leaks may be visible. Some others may come to light only after non-destructive testing. A better picture may be obtained when the plaintiff’s expert has prepared a report. In the very real tsunami of leaky building problems New Zealand has suffered since the late 1990s,2 the second wave consequent litigation, and the subsequent channelling of that litigation by limitation considerations, building experts are not easy to obtain. Some plaintiffs are waiting many months to
obtain expert reports. Even then, without fully destructive testing (which occurs on demolition of defective work and its reconstruction), the exact causes, and their extent, may not be fully apparent. All of this presents particular difficulties in particularising a claim.
Background
[3] The plaintiff in this case pleads that he purchased a residential property in Paremata, a seaside suburb north of Wellington, from its original developers in 2003. The statement of claim then pleads:
The dwelling was built with building defects, including, but not limited to, those set out in schedule 1.
[4] The schedule is a one and a half page document. It identifies defects in relation to the roof, elevations, window and cladding junctions, ground clearances and ground slope. It will suffice for present purposes to set out the three defects claimed in relation to the roof:
1. Inadequate protection of timber framed parapets to roofs exacerbated by lack of adequate falls in places;
2. Inadequate clearance of parapet cladding to roof membranes and roof flashings;
3. Poor detailing of profiled metal roofs including but not limited to:
(a) Lack of turn downs to roofs cladding on small lower roofs on northern and southern elevations;
(b) Lack of adequate extension of roof cladding to small lower roofs on northern and southern elevations;
(c) Inadequately protected ridge lap;
(d) Lack of adequate flashing detailing including but not limited to lack of adequate kick outs at the ends of the roof apron flashings or other mean to direct water away from the cladding and;
(e) Lack of adequate flashing upstands.
[5] The defects schedule is then incorporated in the cause of action against the Council, the first defendant. The Council is alleged to labour under certain duties of care regarding the issue of the building consent, subsequent inspection and issue of the Code of Compliance Certificate. These duties the Council admits. The statement of claim then pleads:
In breach of its duties the Council:
(a) Issued the building consent when the building work, even if carried out in accordance with the plans/specification, would not have complied with the Building Code;
(b) Failed to competently carry out inspections of the dwelling, because: (i) It failed to identify the defects during its inspections; and
(ii) The defects were reasonably apparent to a reasonably prudent building inspector;
(c) Failed to implement and enforce a proper inspection regime which would identify the defects and/or ensure the rectification thereof, prior to the issue of the CCC.
(d) Negligently issued the CCC, when reasonable grounds did not exist on which it could be satisfied that the building work at the property complied with the Building Code;
(e) Failed to identify or advise that the building work at the property did not meet the performance requirements of B2 and E2; and
(f) Failed to institute an inspection regime which would identify the defects.
[6] Other causes of action based on the scheduled defects are advanced against the other defendants. A number of cross-claims have also been filed between the defendants. All this is perfectly conventional in this sort of litigation.
Application for further and better particulars
[7] On 27 June 2012 the Council sought further and better particulars of pleadings. There was an exchange of correspondence, and the plaintiff provided some of what was sought. In the end an amended notice was issued on 8 August
2012, the operative part of which is as follows:
7. For each defect alleged in the list of defects:
7.1 Is it alleged that the defect amounts to a breach of the
Building Code?
7.1.1 If so, state the relevant section/sections of the
Building Code relied upon.
7.2 Is it alleged that the defect has been caused by a failure to build the house in accordance with a particular requirement of the time?
7.2.1 If so, give particulars of the requirements; and
7.2.2 Give particulars of why the council was required to ensure compliance with the requirement. If any statutory provision is relied upon, give particulars; and
7.2.3 Give particulars of how non compliance with the requirement caused damage.
7.3 [omitted]
7.4 What damage has the alleged defect caused?
7.5 What is the scope of the remedial work made necessary by the defect?
7.6 By reference to the inspections listed in paragraph 9(e) of the statement of claim, say when in the construction of the house the alleged defect should have been detected by a reasonably skilled and prudent council inspector?
8.1 If so, give particulars including the particulars requested above.
[8] Formal application in those terms then followed.
[9] The plaintiff opposes the application. Its notice of opposition supplies some further particulars:
Regarding the first defendant’s specific request for particulars of claim:
(i) The plaintiffs are alleging that each defect amounts to the breach of the Building Code (7.1);
(ii) The sections of the Building Code breached have been provided –
E2 and B2 (7.1.1)
(iii) The plaintiff is not saying that the building had to comply with any particular acceptable solution or alternative solution, or any particular BRANZ, or other, standard. The plaintiff’s case is that that there is non-compliance with the Code; (7.2, 7.2.1 – 7.2.3);
(iv) The damage suffered is set out at paragraph 15 of the statement of claim (7.4);
(v) The plaintiff’s case is that the effect of the defects and damage as a
whole require that the remedial works be carried out (7.5);
(vi) The plaintiff says that they do not need to say when in the construction of the house a defect should have been located by an inspector (7.6);
(vii) It is not presently alleged that there are any other defects (8, 8.1); (viii) Particulars of tenders obtained have been supplied to the defendants.
Submissions
[10] In support of the Council’s application, Mr Paul Robertson submits that to the extent it is said that the defects are a breach of the Building Code (the Code), the specific provisions of the Code need to be identified for each defect. Clause E2 of the Code for instance is specified in very general terms. Its overriding functional requirement – cl E2.2 – says simply, “buildings must be constructed to provide adequate resistance to penetration by, and the accumulation of, moisture from the outside”. Any house that leaks by definition does not meet that requirement. So to take, for instance, defect 1 in schedule 1 (set out at [4] above), the Council asks four questions:
(a) Why is it a defect? Why was the protection of the timber frame inadequate? What ought to have been installed but was not?
(b) What is the source of the standard that the building work has not met, so the defect has arisen? The Council asks, in relation to each defect, for particulars of any specific acceptable solution (deemed compliant with the Building Code) that had not been complied with, and/or particulars of the requirements of an alternative solution (demonstrative of Code compliance) mandated by a manufacturer’s installation guide or other requirement.
(c) Why was the Council required to ensure compliance with that standard? That question recognises the reality that all litigants must recognise that the Council would only ever have limited opportunities to review and inspect. Its presence on site was not persistent.
(d) What damage has the Council’s failure to ensure that compliance caused?
[11] Mr Robertson makes the point that developments in case management have meant more “front-ending”, and a greater need for particulars at an early stage. Philosophically hitherto plaintiffs have not wanted to narrow their case, and defendants perhaps have not wanted to face up to the case, whatever its width. Older
building cases, such as Askin v Knox,3 involved a single technical issue (there,
whether the foundations were excavated to solid ground), as opposed to the much greater complexity associated with leaky buildings cases. Mr Robertson noted also that in the Weathertight Homes Tribunal claimants (commonly lay litigants) are required to complete a Scott Schedule setting out defects, relevant requirements not met, location, damage caused and the proportion that damage bears to the whole.
[12] In support of the Council’s application, Mr Christopher Corry for Mr Vines, the fourth defendant plasterer, submits that the statement of claim fails to pin down relevant defects in relation to texture coating which have caused damage. Mr Corry says he does not know where the defects are, or what the consequent damage is. He drew an analogy with personal injury litigation: the defendants would want to know
more than just “serious injuries” had been incurred. They would want to know
which parts of the body were affected, and how.
[13] In opposition, Mr Matt Josephson for the plaintiff submits that particulars in the form now sought by the Council have not routinely been requested by it (or its counterparts) in leaky building cases until recently. Mr Robertson notes that on a number of files lately this Council has made requests not dissimilar to the request in this case. So it is said that this is “something of a test case”. Mr Josephson submits that the Council has a duty to take reasonable steps to enforce the statutory regime – which indeed it accepts. Here, that is the Building Code. It sets a performance standard which building work must meet. In its case against the Council, therefore, the plaintiff must prove:
(a) that the building work does not or will not meet the performance standards imposed by the Building Code; and
(b) that the Council has not taken reasonable steps to ensure this.
[14] Mr Josephson submits that it is for the plaintiff to decide the nature of his case. Here it is that there has been non-compliance with the Building Code, “because the building work has not been performed”. The plaintiff is not concerned with any acceptable solution or alternate solution that might have been used, or any particular BRANZ or other standards. The plaintiff’s case is simply that the building work does not comply with the Code.
Analysis
Function of particulars generally
[15] High Court Rule 5.26 provides, so far as relevant:
The statement of claim—
(a) must show the general nature of the plaintiff's claim to the relief sought; and
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff's cause of action;
...
[16] The purpose of particulars, in their proper scope, were the subject of the following comment by the Court of Appeal in Price Waterhouse v Fortex Group Limited:4
Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.
...
What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings. ...
The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic fact said to give rise to the claim, and of the relief which is sought.
...
In the result, and particularly in complex cases, a rather more detailed factual narrative has come to be required than was the case in earlier and simpler times. That does not require the full detail which later will be contained in a brief of evidence. Nor does the modern requirement for pre-trial exchange of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry.
[17] It will be noted that in complex cases, the Court of Appeal anticipates a more detailed factual narrative. It did not see the development of pre-trial exchange of
briefs as diluting the requirement for sufficient particularisation. However it should also be noted that since 1998 a greater focus on early issue identification in all complex cases (whether or not filed in the Commercial List) has developed. Such issue identification, at the first case management conference and particularly for those cases assigned to the complex track, will normally be exacting. So the requirement for particularisation, if unaffected by pre-trial exchange of briefs at a later stage in the process, may yet be affected by the new approach to case management.
[18] In BNZ Investments Limited v Commissioner of Inland Revenue5 Miller J noted the impact of case management, and also noted in complex cases “over- pleading can obscure rather than clarify the issues”:
[45] The temptation to insist upon excessively refined pleadings is to be resisted as unnecessary and wasteful of costs and court time. That is particularly so in complex cases, where over-pleading can obscure rather than clarify the issues. Case management should ensure that each side is fairly informed of the case that must be met. It can extend to requiring leading counsel to agree a list of issues. Evidence can be exchanged in good time before the trial. Notices of proposed adjustment have already been issued, although I accept that they do not preclude the Commissioner from identifying other grounds and are said to be internally inconsistent.
[19] It follows that the extent of particularisation of pleading has changed somewhat over the last 25 years. But its fundamental function is unaltered. Particulars of pleading are important to:
(a) inform defendants as to the case they have to meet;
(b) limit the scope of matters the plaintiff may put in issue at trial (or in pre-trial settlement discussion);
(c) enable the defendants to know what witnesses it will need to retain and enable them to start preparing evidence ahead of the formal exchange of evidence; and
(d) provide an opportunity for a defendant to seek summary determination on the basis that the claim as pleaded is untenable.
The latter course is seldom a consideration in ordinary residential leaky homes cases. So the real functions of particulars in such cases are those identified at (a) to (c) above.
Function of particulars in negligent omission cases
[20] Particulars have always been an important aspect of negligence cases, especially where negligent omission is pleaded. In such cases both pleading and proof are likely to be indirect, relying on circumstantial evidence and inferences therefrom.
[21] It is important not to overload the exercise. The purpose of particularisation remains as stated at [19] above. As I have said, modern civil procedure, with case management for complex cases in particular, front-ends litigation to a greater degree than previously. In particular, Judges will insist on issue identification at an early stage. That has been so in the present case.
[22] In negligent omission cases, particulars have always had to be given in the pleading showing in what respects the defendant was negligent. It has been said that the statement of claim “ought to state the facts, upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged”.6 Also, where a plaintiff relied on “all the provisions of the Highway
Code”, particulars were ordered of the particular provisions relied on.7
[23] In Helicopter Finance Limited v Tokoeka Properties Limited8 Associate Judge Bell was dealing with a claim, inter alia, against an aircraft engineering company at Ardmore Airfield, South Auckland. It was alleged to have carried out inspections of
a Bell 206 Jet Ranger Helicopter in the two years prior to purchase of that aircraft by
6 Gautret v Egerton (1867) LR 2 CP 371 (Comm Pleas), cited with approval by Lord Alverstone
CJ in West Rand Central Gold Mining Co v R [1905] 2 KB 391 (Div Ct) at 400.
7 Wells v Weeks [1965] 1 WLR 45 (QB).
8 Helicopter Finance Limited v Tokoeka Properties Limited [2012] NZHC 686.
the plaintiff. The helicopter was purchased for USD$405,000, but defects were then discovered and these cost some NZD$490,000 to repair. Its claim against the aircraft engineer was for negligent misstatement. The aircraft engineering company sought further and better particulars. It said the statement of claim did not adequately specify what it was alleged to have done to breach any duty of care, did not show the causal link between its actions and the plaintiff’s loss, and did not adequately
allocate remedial costs to particular defects. The Judge said:9
The first two complaints made by the third defendant indicate a misunderstanding of the plaintiff’s case and the way it intends to prove it. It will not be able to call direct evidence as to the way the third defendant carried out its inspections in 2004 and 2005. Instead, it is likely to try to prove its case by circumstantial evidence. It would do that by showing that:
(a) The helicopter had certain defects, when it took delivery in 2006;
(b) Those defects were also present in the helicopter at the time of the third defendant’s inspections in November
2004 and August 2005;
(c) They were defects which the Bell helicopter maintenance manual and the Civil Aviation Rules required to be identified and remedied;
(d) An aircraft engineer using the appropriate level of skill and care would have identified and remedied the defects;
(e) An aircraft engineer using the appropriate level of skill and care would not have signed the log-book as showing that the aircraft was fit to fly in light of the 100 hour inspection requirements, unless all the defects had been identified and remedied; and
(f) The presence of the defects in 2006 is evidence that the third defendant had not complied with the required standard of care.
This approach is a common way of proving negligence, particularly in cases of alleged negligent inspection and certification. It is followed in leaky building litigation, but is not confined to those cases. It will often be used where the plaintiff cannot know exactly how a defendant carried out its task.
In these cases, it is futile to require the plaintiff to specify in what way the defendant allegedly carried out its task in breach of the duty of care.
9 At [21]-[23].
All that the plaintiff can do is prove the defects and the required standard of care, along the lines set out above, and show that the defects would not have occurred if the defendant had carried out his work to the required standard.
[24] The plaintiff in a negligence case must plead with particularity the respects in which the defendant is said to have fallen beneath the standard of care required of it. If proof and pleading are indirect (in, say, a case based on the defendant’s failure to identify defective construction design or performance by third parties), the plaintiff needs to adequately particularise the following:
(a) what, physically the defects are that caused loss (i.e. the “where”);
(b) the particular standards that the third parties failed to meet in the case of each defect, either individually or collectively (i.e. “how” they were “defects”);
(c) the circumstances in which the defendant came to have an inspectoral or supervisory role (including, normally, when);
(d) the standard(s) required of the defendant in undertaking that role; (e) particulars of the breach of duty by the defendant; and
(f) the loss thereby caused (that is – the loss caused by the third parties’ defective performance which would have been avoided by the defendant performing its duty to the required standard).
These cases typically are “double standards cases” in the sense that two levels of standards are in issue: those that needed to be conformed to by the designer, builder or contractor, and those that needed to be conformed to by the Council in identifying the prior breach of standard by those other parties.
Function of particulars in leaky building cases
[25] Until now leaky building cases appear to have occasioned relatively little controversy over the extent of particularisation required.
[26] In Body Corporate 170812 v Auckland City Council10 Associate Judge Abbott was dealing with an application for further and better particulars by the developer of an 86 unit apartment block in Wakefield Street, Auckland. In that case the developer sought further particulars of each of the defects pleaded in a list contained in one of the paragraphs (but occupying four pages) of the statement of claim. By way of example, the second defect listed was in these terms:
Joints between the concrete frame, cladding and blockwork on the North West elevation (refer D701/A4A) and North East elevation (refer sheet D701/A3A) are finished inappropriately with sealant and lack flashings and are allowing excessive moisture into the building. The sealant was not applied in a purpose designed sealant joint with a ratio of 2 wide to 1 deep with a bond breaking mechanism at the back of the sealant joint. Unless sealant joints are purpose designed the sealant is subjected to excessive stress and cannot accommodate movement whilst weatherproofing the joint.
The particulars sought in that case of that paragraph were as follows:
[The developer] seeks particulars of this pleading as follows: As to 16(b), please specify:
(i) The exact location on the North West and North East elevation that it is alleged there are inappropriately finished sealant joints and lack of flashings allowing excessive moisture into the building.
(ii) Please specify precisely how, where and when the sealant has failed and if so what damage has resulted.
(iii) Whether these sealant joints are vertical or horizontal.
(iv) What sealant ratio (width to depth) has been utilised on the North
West elevation and North East elevation and where.
[27] Associate Judge Abbott said that it would always be a matter of judgment in an individual case whether there was sufficient information to enable the defendant
and Court to understand the claim. In this case he felt there was, with one exception.
10 Body Corporate 170812 v Auckland City Council HC Auckland CIV 2003-404-007259,
29 August 2008.
Looking at the pleading quoted above, the Judge observed that the “general thrust”
of the claim was clear from the pleading. He said:11
The critical issue will be whether the failure is systemic and has led to moisture ingress generally rather than the precise number and location of joints which have failed. How the sealant has failed is properly a matter for evidence. I have already given my view that the timing of the failure is not a material element of the plaintiffs’ claim requiring pleading but rather a matter of evidence on an issue in [the developer’s] defence. Similarly, in the absence of any evidence from [the developer] as to the importance of whether sealant joints are vertical or horizontal, I do not see that this is an issue of pleading. The same can be said of the width to depth ratio of the sealant.
The exception noted by the Judge was failure to identify the nature of the damage caused to the structure of the building. The Judge said:12
I consider that the plaintiffs should provide general particulars of the damage caused by the defects (rather than the specific defect by defect basis sought by [the developer]) which necessitates the re-cladding. They have provided such general particulars of damage in relation to the defective pipe-work but not in relation to the defects in the external cladding.
[28] In Body Corporate 207715 v Auckland Council,13 Associate Judge Doogue was dealing with a leaky building claim concerning a 65 unit residential development in Gulf Harbour Drive, Whangaporoa, north of Auckland. The application for particulars concerned the third party pleading by the Council against the manufacturer of the cladding products used in construction. The Council alleged that the third party manufacturer owed a duty of care to the plaintiff in respect of inspections at the property and in the training and licensing of its contractors responsible for the installation of its product. The Council’s third party statement of claim alleged that the manufacturer had undertaken inspections at various points, and had failed to provide adequate training to ensure that its products were installed in compliance with the Building Code and the Building Act.
[29] The Judge observed:14
It will be helpful to consider the scope and width of the allegations made: to try and assess the area of ground that they cover and then to judge whether
11 At [63].
12 At [65].
13 Body Corporate 207715 v Auckland Council [2012] NZHC 519.
14 At [20] and [25]–[26].
the pleadings as they stand are bereft of particulars to the point where the defendant as a result be unfairly disadvantaged in coping with the Council’s claim. In deciding if there is unfair disadvantage, one has to have regard to the functions that pleadings are designed for. They include providing sufficient information so that the factual enquiries the opposing party will need to make can be defined with reasonable clarity. While the claimant does not need to set out submissions of law, that there must be reference to any statutory provision that is going to be relied upon together with the basic legal effect of the facts alleged, such as an allegation that as a result there was a breach of contract or a breach of trust, needs to be supplied.
...
I remind myself that if the Court comes to the view that, when the pleadings are assessed against the background I have just set out, it would not be an oppressive or unfair exercise for them to make the necessary enquiries to position themselves to meet the case, it would indicate that particulars are not required. On the other hand, one can imagine a case where there are so many unspecified contingencies that the applicant would have to investigate to be sure that it had not left any stone unturned in preparing to meet the case at trial, that the Court would require the Council to whittle down the scope of its assertions by providing additional particulars.
So long as the Council’s claims are coherent and do not impose an unnecessary and disproportionate burden upon the applicant who has to formulate a defence, then the particulars will not be required.
[30] In the end the Judge concluded that the statement of claim provided sufficient notice to the applicant manufacturer of the basis of the Council’s claim. The application for further and better particulars was dismissed.
[31] On the other hand, in Tucker v Welch Construction (1998) Limited (In Liquidation)15 Associate Judge Faire was dealing with an application by a builder against the plaintiff owner for further and better particulars of a claim concerning a single residential house in Benner Drive, Ngatea. After referring to the Price Waterhouse decision in the Court of Appeal, the Judge ordered further and better particulars in that case of the following matters: the date on which the builder was
alleged to have selected, instructed and engaged the second and third defendant engineers; the respects in which the builder should have acted in selecting, instructing and engaging the engineers; how the builder failed to ensure its design of the “stiff elements” could withstand differential settlement; and how the first defendant failed to exercise due skill and care to ensure the concrete slab and
foundations were not overloaded, thus causing distortions to the dwelling. The
Judge said:16
What the plaintiffs have pleaded in this case is just a generalised allegation of negligence in relation to certain aspects of the work that was undertaken without identifying, with any particularity, what it is that should have been done in each case. This current pleading does not give a basis upon which evidence in rebuttal of the allegation could properly be pled. I am concerned, that if it were left without particularisation, there is a real risk that the first defendant could be embarrassed at trial and might be required to seek an adjournment to respond to what is alleged with precision in the evidence. That should not be allowed to happen and, in fact, will not if the allegations are properly particularised.
[32] It follows from these authorities that the conventional approach to particularisation of negligent omission cases will be taken in relation to leaky buildings cases. A detailed Scott Schedule need not be submitted as part of the statement of claim. The plaintiff’s pleadings need to show the general nature of the plaintiff’s case, give sufficient particulars of the matters in High Court Rule 5.26(b), enable the issues between the parties to be defined, and enable the defendant to start briefing its evidence.
Particulars required in this leaky building case
[33] I am satisfied that the pleadings here are not sufficiently particularised in certain respects.
[34] First, consistent with longstanding principle in relation to the pleading of negligent omission cases, the statement of claim needs to particularise any objective standards, expressed either in specific acceptable solutions deemed compliant with the Building Code or in alternative solutions (e.g. manufacturers installation standards), that the plaintiff says forms part of the standards the builder and contractors were required to meet, and which therefore indirectly are impressed upon the Council when exercising its own duties. In submissions Mr Josephson confirmed that the plaintiff does not rely on any standard other than those explicitly stated in the Building Code itself. That limitation needs to be expressed in the statement of claim, and will thus limit the scope of the matters the Council needs to meet and
prepare for in evidence. It follows that to that extent the Council is entitled to particulars 7.1.1 and 7.2.1 sought in its application.17
[35] Secondly, by reference to each defect (either individually or collectively), the statement of claim needs to explain adequately how the Council was required to ensure compliance with those objective standards not met in the construction of the dwelling. The Council is therefore entitled to particular 7.2.2 sought in its application.
[36] Thirdly, the Council is entitled to be informed of how its non-compliance with the pleaded standards required of it resulted in loss. To the extent it can, the plaintiff must particularise quantum. In the normal course in such cases this may not be possible beyond indicative levels, which may be conveyed outside the pleadings. If quantum cannot be stated, then an inquiry may need to be sought or else precise quantum reserved to be proved at trial. Where any particular loss is not attributable to the Council, however, that needs to be delineated. The Council is therefore entitled to particulars 7.2.3 and 7.4, to the extent just stated.
[37] I do not hold that particulars 7.5 or 9 (relating to remedial work) are required. These go beyond the necessary scope of particulars of pleadings, to details of quantum which can be addressed in evidence rather than in pleadings.
[38] Nor do I require provision of particular 7.6 – when in the construction of the house the alleged defect should have been detected by a prudent Council inspector. Again that is primarily a matter of evidence. The plaintiff will have no direct knowledge, and will have far less information than the Council does, of the inspection process.18
[39] The plaintiff has answered particular 8.1 in its notice of opposition. No order need be made in relation to it.
[40] Beyond the three categories of particulars listed above I do not consider it is necessary for the plaintiff to go at this stage. The Council will thereby have
17 See [7] above.
18 See Helicopter Finance Limited v Tokoeka Properties Limited [2012] NZHC 686 at [24].
sufficient clarity as to the case against it. If further detail is really necessary, it can interrogate.
Result
[41] The application is allowed to extent set out in [34]–[36] above.
[42] I will if need be receive memoranda on costs. My sense however is that costs on this application should lie where they fall given the substantial response given already by the plaintiff.
[43] The following timetable is now directed:
(a) the plaintiff is to file and serve an amended statement of claim by
8 October 2012;
(b) amended statements of defence are to be filed by 29 October 2012;
(c) the Registrar is to confer with parties regarding a convenient date for a judicial settlement conference, before an Associate Judge, if possible before the end of 2012;
(d) the Registrar is to identify the availability of a ten day fixture not earlier than 11 March 2013, and confer with counsel as to a convenient date. If difficulties arise, a third and brief telephone conference will be convened;
(e) leave is reserved to apply further as necessary, in particular in the event of any issue as to compliance with my decision as to particulars.
Stephen Kós J
Solicitors:
Grimshaw & Co, Wellington for Plaintiff
Heaney & Co, Auckland for First Defendant
Parker & Associate, Wellington for Second and Third Defendants
Upper Hutt Law, Upper Hutt for Fourth Defendant
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