A new weapon in the particulars toolbox

Wednesday, September 27, 2017

A recent High Court decision has sided with defendants when it comes to inadequately drafted pleadings, particularly in the space of defective building/construction claims. Body Corporate 199883 & Ors v Auckland Council [2017] NZHC 2042 is a strike out application by Auckland Council (Council) concerning the adequacy of pleadings in what is sometimes referred to as a "third-wave leaky building case" (i.e. where repairs of a leaky building are allegedly defective).

In this case, the Body Corporate issued proceedings alleging that remedial work carried out on their apartments was defective, and that the apartments still leaked and did not comply with the New Zealand Building Code (Code). This was a standard negligence claim against the Council, for allegedly breaching a duty of care in issuing consents for the remedial work, failing to sufficiently inspect the remedial work, and issuing a Code Compliance Certificate in respect of the remedial works.

The Council applied to strike out the claim against it on the basis that the pleadings lacked sufficient specificity for the Council to understand or defend what was alleged against it. The Court agreed that the Body Corporate's statement of claim was defective, citing rule 5.26 of the High Court Rules and associated cases, and concluded that the Council was entitled to know with an appropriate degree of particularisation what it was about the remedial works that were defective, and how the Council was responsible or liable for that particular state of affairs. Helpfully, Fitzgerald J identified the following particulars which ought to be given in relation to each alleged defect:

  • Whether the alleged physical state of affairs is said to have arisen from defective design, defective construction, some other mechanical defect, or the use of defective materials during the remedial works;
  • What particular duty the Council is alleged to have breached (i.e. if a design defect, then breach may be limited to consent process; if construction defect, breach may be attributed to inspection work);
  • The extent that there is any alleged insufficiency with the consented plan(s) and/or specifications, the details of these, and the specific location of these in the plan(s) and/or specifications; and
  • Further detail in respect of the location of each alleged defect, including diagrams if needed.

We consider the above 4 points can be applied more generally to inadequate particulars in defective building claims and to other defendants such as architects, engineers, project managers, and other professionals as a whole. We also anticipate that Councils and defendants with extensive third party claims will be able to use the above 4 points to demand a higher standard of particulars from plaintiffs. We certainly consider this decision provides a new tool for defendants and third parties facing broad and imprecise pleadings - and a possible alternative to the formal process of demanding further and better particulars.

For more information please contact Duncan McGill or Joanna Stafford.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.