(HC, Auckland, CIV 2010-404-002612, 22 October 2010, Venning J)
The appellants made a claim in the WHT for $355,000 in respect of a leaky home in Kohimarama, Auckland. The WHT directed that two owner/developer respondents be removed from the proceedings under s 112 of the WHRS Act on the basis that:
a) the claim in contract was time-barred by the Limitation; and
b) there was no evidence that the respondents had any particular role as developers to support the tortious duty of care alleged against them.
On appeal, Venning J found that the WHT had applied the wrong test on a strike-out or removal application under s 112. It had wrongly focused on whether the respondents had produced sufficient evidence to establish that the claim against the party seeking removal was capable of succeeding.
In looking at whether the appellants’ claim that the respondents were developers (with a non-delegable duty of care) was so untenable that it could not succeed, Venning J held that:
a) there was a basis for this allegation in that the respondents were clearly the owners of the site which was itself subsequently developed;
b) various other undisputed matters of fact were consistent with this (including indications that either or both respondents were involved in applying for building consent, construction, and attending the site during development);
c) the issue of the extent of involvement of the respondents in the development and whether they were only investors as opposed to developers could only be resolved at a hearing (e.g. through cross-examination).
Accordingly, since at present it was arguable that the respondents were liable as developers, the appeal was allowed.
Comments
This case is important in clarifying the correct approach the WHT should take on a removal application. The onus is not on the claimants to produce evidence that the party seeking removal was arguably liable. Instead, the WHT must assume that all the facts pleaded are true, and consider whether the claim is so untenable that it cannot succeed. Where material facts are disputed, it will generally be inappropriate to allow removal.
09 304 0666
Wong & Ho v Auckland City Council
(HC, Auckland, CIV 2010-404-002612, 22 October 2010, Venning J)
The appellants made a claim in the WHT for $355,000 in respect of a leaky home in Kohimarama, Auckland. The WHT directed that two owner/developer respondents be removed from the proceedings under s 112 of the WHRS Act on the basis that:
a) the claim in contract was time-barred by the Limitation; and
b) there was no evidence that the respondents had any particular role as developers to support the tortious duty of care alleged against them.
On appeal, Venning J found that the WHT had applied the wrong test on a strike-out or removal application under s 112. It had wrongly focused on whether the respondents had produced sufficient evidence to establish that the claim against the party seeking removal was capable of succeeding.
In looking at whether the appellants’ claim that the respondents were developers (with a non-delegable duty of care) was so untenable that it could not succeed, Venning J held that:
a) there was a basis for this allegation in that the respondents were clearly the owners of the site which was itself subsequently developed;
b) various other undisputed matters of fact were consistent with this (including indications that either or both respondents were involved in applying for building consent, construction, and attending the site during development);
c) the issue of the extent of involvement of the respondents in the development and whether they were only investors as opposed to developers could only be resolved at a hearing (e.g. through cross-examination).
Accordingly, since at present it was arguable that the respondents were liable as developers, the appeal was allowed.
Comments
This case is important in clarifying the correct approach the WHT should take on a removal application. The onus is not on the claimants to produce evidence that the party seeking removal was arguably liable. Instead, the WHT must assume that all the facts pleaded are true, and consider whether the claim is so untenable that it cannot succeed. Where material facts are disputed, it will generally be inappropriate to allow removal.