Olivia Waiyee Lee v Whangarei District Council

JurisdictionNew Zealand
CourtSupreme Court
JudgeGlazebrook,Arnold,O'Regan JJ
Judgment Date03 August 2016
Neutral Citation[2016] NZSC 98
Date03 August 2016
Docket NumberSC 68/2016

[2016] NZSC 98

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Glazebrook, Arnold and O'Regan JJ

SC 68/2016

Between
Olivia Waiyee Lee
Applicant
and
Whangarei District Council
Respondent
Counsel:

Applicant in person

F P Divich for Respondent

Application for leave to appeal against the Court of Appeal's dismissing of an appeal against a summary judgment granted in the High Court (HC) on the basis that limitation applied to the appellant's claim — the applicant owned a leaky house which failed its final inspection in March 2008 — the applicant had commissioned a report in February 2008 which identified weathertightness issues — a subsequent report in April 2011 noted additional defects — the appellant issued proceedings in May 2014 alleging negligence in the Council's inspections — the HC held that s4(1)(a) Limitation Act 1950 applied and not s393 Building Act 2004 (Limitation defences — 10 years) — the Court of Appeal agreed with the HC on the application of s4(1)(a) and said that s37 Weathertight Homes Resolution Services Act 2006 (Application of Limitation Act 2010 to applications for assessor's report, etc) did not stop the clock for the purposes of all proceedings relating to the building — whether leave should be granted to argue that the Courts below had applied the wrong limitation time — whether leave should be granted to argue that s37 WHRSA stopped the clock for the purposes of all proceedings relating to the building.

Held: Apart from the issue of the effect of s37 WHRSA, the proposed appeal does not meet the criteria for leave to appeal under s13 of the Supreme Court Act 2003. The other issues L sought to raise were concerned with her own particular circumstances and raised no issues of general or public importance. Nothing raised by L suggested the incorrect limitation period was used or that the lower courts were wrong to take the B's report as the starting point for limitation purposes.

L did seek to argue points not raised in the courts below. There was nothing in these new arguments that would suggest the decisions below might have been in error. Nor did anything she seeksto raise1 point to a possible miscarriage of justice.

The application for leave to appeal was granted in part.

The approved question was whether, in terms of s 37 of the Weathertight Homes Resolution Services Act 2006, the application for an assessor's report “stopped the clock” for limitation purposes with regard to the proceedings against the respondent.

JUDGMENT OF THE COURT

A The application for leave to appeal is granted in part ( Olivia Waiyee Lee v Whangarei District Council [2016] NZCA 258).

B The approved question is whether, in terms of s 37 of the Weathertight Homes Resolution Services Act 2006, the application for an assessor's report, “stopped the clock” for limitation purposes with regard to the proceedings against the respondent.

C In all other respects the application is dismissed.

REASONS

Background
1

Ms Lee seeks leave to appeal against the decision of the Court of Appeal 1 dismissing her appeal against summary judgment granted in the favour of the respondent in the High Court. 2

2

The proceeding concerns Ms Lee's house. During construction, Ms Lee had noticed that the house leaked and drew this to the builder's attention. In February 2008 Ms Lee engaged an expert consultant, Mr Beattie, to assess the home. This was in an attempt to resolve an ongoing dispute with the builder over workmanship and payment.

3

The Beattie report, amongst other faults, identified that the exterior cladding “would not meet the requirements of the New Zealand Building Code in either durability, weathertightness or alignment.” A later report in April 2008 repeated this finding, in addition to noting defects in roof draining and balconies. 3 In April 2011, another report was prepared by Mr Gill, a registered building surveyor, who identified defects that had not previously been identified, including that the plywood...

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