Deeming ACS (NZ) Limited (formerly EIG-Ansvar Limited) [2013] NZHC 1644 (2 July 2013)

Last Updated: 30 July 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6476 [2013] NZHC 1644

BETWEEN SUSAN JANE DEEMING Plaintiff

AND ACS (NZ) LIMITED (formerly EIG- ANSVAR LIMITED)

First Defendant

LEUNG MING CHU and CHENG HUA LUI

Second Defendants

MOUNTFORD ESTATE AGENT LIMITED

Trading as RAY WHITE PAKURANGA Third Defendant

MICHAEL ALEXANDER DAVIDSON Fourth Defendant

THE INSPECTOR LIMITED Fifth Defendant

AUCKLAND COUNCIL Sixth Defendant

GEOTEK SERVICES LIMITED Seventh Defendant

SIMON JAMES WOODWARD Eighth Defendant

Hearing: 2 July 2013

Appearances: P J Wright for plaintiff

J N Bierre for seventh and eighth defendants

Judgment: 2 July 2013

(ORAL) JUDGMENT OF LANG J [on application for adjournment]

SUSAN JANE DEEMING v ACS (NZ) LIMITED (formerly EIG-ANSVAR LIMITED) [2013] NZHC 1644 [2

July 2013]

[1] This proceeding has a trial date of 2 September 2013. Counsel estimate the trial will take two weeks.

[2] The plaintiff is the owner of a residential property. The property suffers from structural defects. The plaintiff has sued the developer of the property, the previous owner and also a firm of geotechnical experts, who prepared reports relating to the land prior to a subdivision being undertaken.

[3] In a judgment delivered on 2 May 2013 Associate Judge Doogue dismissed an application by the seventh and eighth, the geotechnical company and its director, for summary judgment and/or strike out in relation to causes of action based in negligence and under the Fair Trading Act 1986.[1] The Associate Judge struck out a claim based on negligent misstatement.

[4] The seventh and eight defendants have appealed to the Court of Appeal against the Associate Judge’s decision. They now seek an adjournment of the trial pending disposition of the appeal. The plaintiff proposes the proposed adjournment, but the remaining parties abide the decision of the Court on the issue.

The arguments

[5] The plaintiff’s principal concern is that any adjournment of the trial will necessarily mean that determination of her claim will be further delayed. Through her counsel, she advises the Court that the home continues to suffer damage and that any further delay will place great stress not only on her, but on the physical integrity of the building. She seeks to have her claims determined as soon as possible, and opposes any suggestion that the trial be delayed pending determination of the appeal.

[6] The issue for determination by the Court of Appeal will be whether the

Associate Judge was correct to determine that the preparation of geotechnical reports for the purposes of a proposed subdivision did not amount to building work and so

are not caught by the long stop provisions contained in s 393 of the Building Act

2004.

[7] Counsel for the seven than and eighth defendants does not at this stage have a firm fixture in the Court of Appeal. This morning, however, the Registry of the Court of Appeal advised counsel that a fixture would be available on 14 November

2013. Enquiries made with the Registry of this Court have also revealed that a two week fixture would be available between mid-March and the end of May 2014. Counsel for the seventh and eighth defendants submits that a delay of six to eight months would not significantly prejudice the plaintiff, who continues to be able to reside in her property.

[8] Counsel for the seventh and eighth defendants also submits that the Court of Appeal’s decision is likely to be determinative of the claim, because it may well result in the claims against them being struck out.

Decision

[9] In considering whether or not to grant an adjournment, the Court must have regard to the interests of justice. This means the Court must balance the interests of all parties in relation to the proposed adjournment. Although the administration of justice generally is also a factor to be taken into account, this will give way in most cases to the interests of the litigants in question.

[10] The argument for the seventh and eighth defendants has a superficial attraction, because if their appeal succeeds, there is a prospect that the plaintiff’s claims against them will be struck out. That will obviously reduce the scope of the trial, and will also remove the need for the seventh and eighth defendants to incur the costs of preparing for trial.

[11] On the other hand, I am not at all convinced that the hearing before the Court of Appeal will be determinative of matters. First, the appeal may be dismissed. Secondly, the Court of Appeal may take a middle road. It may, for example, allow

the appeal in relation to the claim based on negligence but permit the claim under the

Fair Trading Act 1986 to continue.

[12] Thirdly, if the point is as important as counsel for the seventh and eighth defendants submits, there is a realistic prospect that an appeal to the Supreme Court may follow. Should that occur, the trial would be delayed even further.

[13] I take the view that the plaintiff’s interests in having her claims determined outweigh the interests of the seventh and eighth defendants in having their appeal heard. The plaintiff filed this proceeding on 7 October 2011. She has waited two years for a fixture. I also accept that she will suffer ongoing stress, and her property will suffer ongoing physical damage as time goes on.

[14] Although the seventh and eighth defendants will be required to prepare for trial, they will be left in the same position so far as their appeal rights are concerned. In addition, they will have the ability to appeal to the Court of Appeal in relation to any other matters that emerge out of the trial and subsequent judgment.

[15] I am therefore satisfied that the interests of justice require the present fixture to be maintained. The application for an adjournment is accordingly dismissed.

Pre-trial directions

[16] The pre-trial directions that I made on 20 June 2013 are now varied as follows:

(a) The plaintiff is to serve her briefs of evidence no later than 4 July

2013.

(b) The defendants are to serve their briefs of evidence, and briefs of evidence on cross claims, by 31 July 2013.

(c) The common bundle and briefs in answer to cross claims are to be served no later than 16 August 2013.

(d) The plaintiff’s opening address and chronology are to be filed and served no later than 23 August 2013.

(e) The defendants’ chronologies are to be filed and served no later than

_{30 August 2013.}

Costs

[17] Costs should follow the event. The plaintiff is awarded costs on a Category

_{2B basis together with disbursements as fixed by the Registrar.}

Lang J

Solicitors:

P J Wright, Auckland

Phillips Fox, Auckland Keegan Alexander, Auckland Heaney & Partners, Auckland Morgan Coakle, Auckland

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[1] Deeming v EIG-Ansvar Ltd & Ors HC Auckland CIV-2011-404-6476, 2 May 2013.