Body Corporate No. 338356 and Others v Endean and Others
| Jurisdiction | New Zealand |
| Judgment Date | 28 October 2014 |
| Neutral Citation | [2014] NZHC 2644 |
| Date | 28 October 2014 |
| Docket Number | CIV 2010-404-001415 |
| Court | High Court |
and
[2014] NZHC 2644
CIV 2010-404-001415
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application to file a proposed fifth amended statement of claim (5SOC) after the close of pleadings date — rule 7.7 High Court Rules (HCR) (Steps after close of pleadings date restricted) provided that an amended pleading could not be filed after the close of pleadings date without the leave of a Judge — substantive claim involved leaky building — defendants said that the 5SOC was an attempt by the plaintiffs to support their claim for a full re-clad by reference to new, and to date unpleaded, allegations of further defects and damage and that the plaintiffs were, in effect, seeking to alter the schedule of defects — whether the plaintiffs were raising a new cause(s) of action — if not, whether leave to file the proposed 5SOC should nevertheless be refused under r7.7 HCR.
C Baker for the Plaintiffs
A Barker for the First Defendant
R Hollyman and A Holmes for the Second Defendant J Morrison for the Third Third Party
No Appearance for Other Defendants or Third Parties
This judgment was delivered by Justice Wylie on 28 October 2014 at 4.45 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
These proceedings concern an apartment building on St Paul's Street near Auckland University. It comprises 78 units and was constructed between 2002 and 2004.
The first and second plaintiffs allege that the building leaks and they have brought proceedings against those they say are responsible. Their original statement of claim was dated 9 March 2010. There have been a number of amendments to the pleading since. These culminated in the fourth amended statement of claim dated 24 May 2013. It was filed on 27 May 2013.
The proceeding has been allocated a fixture. It is due to proceed to hearing on 9 February 2015.
The close of pleadings date was 2 July 2014.
On 3 July 2014, the plaintiffs applied for leave to further amend their statement of claim. A proposed fifth amended statement of claim was served on the parties. That document has subsequently been amended yet again, albeit in relatively minor ways. To explain the proposed fifth amended statement of claim, the plaintiffs also served copies of their expert reports. They set out the factual basis for the amendments proposed.
The first defendants were the owners of the land on which the building now sits. They developed the complex. The second defendant is a firm of architects. They prepared the plans and specifications for the building. Both the first and second defendants oppose the application to file the fifth amended statement of claim.
The sixth defendant was a director of the company that certified the various stages of the development and completed the final code compliance certificate. The company has since been struck off. He also opposes the application. His appearance was excused by Faire J in a minute issued on 16 October 2014. The minute recorded that the sixth defendant supports the position taken by the first and second defendants.
There was an appearance for the third third party. It did not oppose the application and Mr Morrison on its behalf simply had a watching brief. The remaining defendant, James Hardie New Zealand Limited, and the fourth third party, Bondor New Zealand Limited, did not oppose the application and they did not attend the hearing.
The plaintiffs require leave to file the proposed fifth amended statement of claim because they seek to file it after the close of pleadings date. Relevantly, r 7.7 provides as follows:
7.7 Steps after close of pleadings date restricted
(1) No statement of defence or amended pleading or affidavit may be filed, and no interlocutory application may be made or step taken, after the close of pleadings date without the leave of a Judge.
…
The plaintiffs are unable to obtain leave if the proposed amendments raise a new cause of action which is statute barred. The relevant rule is r 7.77(2). It provides as follows:
7.77 Filing of amended pleading
…
(2) An amended pleading may introduce, as an alternative or otherwise,–
(a) relief in respect of a fresh cause of action, which is not statute barred; or
(b) a fresh ground of defence.
…
The hearing raised two issues for the Court:
-
(a) whether the plaintiffs, through the proposed amendments, are seeking to raise a new cause(s) of action, that is statute barred, and
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(b) if not, whether leave to file the proposed fifth amended statement of claim should nevertheless be refused under r 7.7.
There was no dispute between the parties as to the relevant law.
The primary purpose of pleadings: 1
is to define the issues, and thereby to inform the parties in advance of the case they have to meet, and so enable them to take steps to deal with it.
A pleading is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. 2
While there is no scheduled form mandated for statements of claim, the rules do put in place minimum requirements. The general nature of the claim to the relief sought must be set out. The statement of claim must give sufficient particulars of relevant details and other circumstances to inform the Court and the party or parties against whom relief is sought of the plaintiff's cause of action. 3
A cause of action is every fact which it will be necessary for the plaintiff to prove, if traversed, to support his or her right to a judgment of the Court. 4
Whether or not a proposed amendment to pleadings introduces a new cause of action has been considered by the courts on a number of occasions. The leading
…The issue is, I think, put as clearly as anywhere in the words of Lord Wright MR in Marshall v London Passenger Transport Board, 6 … [1936] 3 All ER 83 as being whether the new pleading involves “a new departure, a new head of claim, or a new cause of action”. 7… ibid 87. In other words, is it something essentially different from that which was pleaded earlier? Such a change in character may be brought about, in my view, by alterations in matters of law or of fact, or both. Alterations of fact could possibly be so vital and important as by themselves to set up a new head of claim. On the other hand, more often alterations of fact do not affect the essence of the case brought against the defendant… In each case it must, I consider, be a question of degree.
This statement has been adopted and applied in a number of subsequent cases. 8 Recently, the principles were restated by the Court of Appeal in Transpower New Zealand Limited v Todd Energy Limited. 9 The Court observed as follows:
[61] The relevant principles as to when a cause of action is fresh are summarised in the Ophthalmological case at [22] – [24] as follows:
(a) A cause of action is a factual situation the existence of which entitles one person to obtain a legal remedy against another…; 10
(b) Only material facts are taken into account and the selection of those facts “is made at the highest level of abstraction”…; 11
(c) The test of whether an amended pleading is “fresh” is whether it is something “essentially different”… 12 Whether there is such a change is a question of degree. The change in character could be brought about by alterations in matters of law, or of fact, or both; and
(d) A plaintiff will not be permitted, after the period of limitations has run, to set up a new case “varying so
substantially” from the previous pleadings that it would involve investigation of factual or legal matters, or both, “different from what have already been raised and of which no fair warning has been given”. 13…
The principles set out in Transpower were adopted in Commerce Commission v Visy Board Pty Limited. 14 The Court of Appeal there noted that the question is whether an amendment to pleadings changes the claim against the defendant, so that it is something essentially different from what it was before the amendment. It recorded that such a change could occur as a result of an alteration in matters of fact. It went on to consider Smith v Wilkins & Davies, and two other cases. 15 It then observed as follows:
[146] …The theme running through all three cases is that in order for an amendment to amount to a new cause of action, there must be a change to the legal basis for the claim. That can, in theory, occur through the addition of new facts, but only if the facts added are so fundamental that they change the essence of the case against the defendant. If the basic legal claims made are the same, and they are simply backed up by the addition or substitution of a new fact, that is unlikely to amount to a new cause of action.
[147] … the importance of the pleaded fact to the success of the claim is not the test; the question is whether the amendment has changed the essential nature of the claim…
It was common ground that if the proposed fifth amended statement of claim raises a new cause(s) of action, then the same is statute barred. The building work at issue in these proceedings took place when the Building Act 1991 was in force. It contained a...
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