Olivia Waiyee Lee v Whangarei District Council

• Jurisdiction: New Zealand
• Judge: Glazebrook,Arnold,O'Regan JJ
• Judgment Date: 03 August 2016
• Neutral Citation: [2016] NZSC 98
• Docket Number: SC 68/2016
• Court: Supreme Court
• Date: 03 August 2016

Between

Olivia Waiyee Lee

Applicant

and

Whangarei District Council

Respondent

[2016] NZSC 98

Court:

Glazebrook, Arnold and O'Regan JJ

SC 68/2016

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

Applicant in person

F P Divich for 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 pre-cladding had not been sealed and joints had not been taped.

4 The Whangarei District Council had carried out a number of inspections during construction of the house. It failed its final inspection on 26 March 2008 and a code compliance certificate was not issued. Ms Lee issued proceedings on 21 May 2014 alleging negligence in the Council's inspections.

Judgments in the courts below

5 Associate Judge Bell was satisfied that the proceedings were governed by s 4(1)(a) of the Limitation Act 1950 and not by s 393 of the Building Act 2004. 4 He held that the Council had shown “by a strong...