Econicorp Holdings Ltd v Minister of Education

• Jurisdiction: New Zealand
• Judge: Elias CJ,McGrath,William Young JJ
• Judgment Date: 05 December 2011
• Neutral Citation: [2011] NZSC 148
• Docket Number: SC 107/2011
• Court: Supreme Court
• Date: 05 December 2011

Between

Econicorp Holdings Limited

Applicant

and

Minister of Education

Respondent

[2011] NZSC 148

Court:

Elias CJ, McGrath and William Young JJ

SC 107/2011

IN THE SUPREME COURT OF NEW ZEALAND

Application for leave to appeal to the Supreme Court by a building company against a Court of Appeal decision reinstating a cause of action in negligence which was struck out in the High Court, in respect of the construction of a school hall — whether it was in the interests of justice that the Supreme Court hear this proposed appeal ahead of trial — whether there was prejudice to the applicant by not hearing the appeal ahead of trial within the terms of s13(4) Supreme Court Act 2003.

Counsel:

R J Hollyman for Applicant

M S R Palmer, R Chan and T M Bromwich for Respondent

The application for leave to appeal is dismissed with costs to the respondent of $2500.

JUDGMENT OF THE COURT

REASONS

1 This application for leave to appeal arises out of the construction of a school hall in 1999. The Minister of Education and the school's Board of Trustees have separately sued the builder and its design services provider for losses said to arise from defective foundations and construction of the building. The Board sued the builder for breach of contract and negligence and the design company in negligence. The Crown, which was not a party to the building contract, has sued both defendants in negligence.

2 In the High Court, 1 the builder sought summary judgment and was successful in getting the Board's claim in contract struck out as being out of time under the Limitation Act 1950. The builder also succeeded in having the Crown's claim against it in negligence struck out because the builder did not owe the Crown a duty of care. On appeal by the Crown, its cause of action against the builder was

reinstated by the Court of Appeal. 2 The builder now seeks to appeal to this Court against that judgment

3 As the proposed appeal is against an order made by the Court of Appeal on an interlocutory application, s 13(4) of the Supreme Court Act requires this Court to refuse leave to appeal, unless satisfied it is necessary in the interests of justice for the Court to hear and determine the appeal ahead of trial. If leave were given and the builder's appeal was successful, the dispute would still proceed to trial with the Crown, the Board, the builder and the designer all parties. The builder would not have to address the claim...