Saffioti v Auckland Council

• Jurisdiction: New Zealand
• Judge: Woodhouse J
• Judgment Date: 14 September 2012
• Neutral Citation: [2012] NZHC 2394
• Docket Number: CIV-2012-404-002091
• Court: High Court
• Date: 14 September 2012

In the Matter of an appeal against the decision of the Weathertight Homes Tribunal at Auckland

Between

Carl Santo Saffioti and Eija Marita Linden Saffioti

Applicants

and

Auckland Council

Respondent

[2012] NZHC 2394

CIV-2012-404-002091

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for leave to appeal against decision of Weathertight Homes Tribunal ordering that the Auckland Council be removed as party to the proceeding — applicants' notice of appeal had been filed out of time — alleged Council should have stated on the Land Information Memorandum (“LIM”) that the code compliance certificate was issued by a building certifier, who that building certifier was and that he had been deregistered as a certifier — statutory foundation for claims was s44A Local Government Official Information and Meetings Act 1987 (Land information memorandum) — applicant claimed they would not have approved the LIM condition in agreement for sale and purchase when purchasing the property if such information had been in the LIM — whether s50(3) Building Act 1991 (establishing compliance with building code) applied to provide a statutory defence in absence of showing the Council did not act in good faith.

Counsel:

R J Hooker for the Applicants

D J Barr for the Respondent

JUDGMENT OF Woodhouse J

1 The applicants commenced a claim in the Weathertight Homes Tribunal against 10 defendants, including the respondent Council. The Council applied for an order that it be removed as a party pursuant to s 112 of the Weathertight Homes Resolution Services Act 2006 (the Weathertight Act). An order to that effect was made by the Tribunal on 21 December 2011.

2 The applicants now seek leave to appeal out of time against that decision.

The appeal provisions under's 94(2) of the Weathertight Act and leave to appeal principles

3 Under's 94(2) a notice of appeal must be filed within 20 working days after the date of the Tribunal's decision or “within any further time that the … court may allow”. The notice of appeal should have been filed by 10 February 2012. The application for leave was filed on 18 April 2012.

4 The over-riding consideration on an application of this nature is where the interests of justice lie. 1 Factors that bear on this include: (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the appeal, which in this case requires consideration of the merit of the substantive claim against the Council; (4) the party's conduct; (5) the extent of prejudice; and (6) whether the appeal raises any issue of public importance. 2

5 These factors are not exhaustive. And particular matters are not to be given priority as a matter of course. For example, a persuasive explanation for the delay may not warrant leave being granted if the applicant has little prospect of success. The reverse could apply – the reasons for delay may not be persuasive, but the case may be strong. Prejudice is to be assessed in the overall context, not only in relation to the parties. Others may be affected.

The applicants' claim against the Council

6 The Council's application to be removed as a party was directed to the applicants' original statement of claim. Following this a detailed, fully pleaded amended statement of claim was filed in November 2011. The submissions to the Tribunal, and therefore the Tribunal's decision, were made after the amended statement of claim was filed. The Council, for the purposes of the hearing in the Tribunal, and also for the purposes of the hearing in this Court, accepted that the pleaded facts are correct.

7 The claim arises out of an agreement for sale and purchase of a residential property entered into by the applicants, as purchasers, on 26 September 2004. The applicants obtained a LIM from the Council. 3 The request for the LIM was on 8 October 2004. It was supplied to the applicants' solicitors on 11 October 2004. The content of the LIM, and information not recorded in it, is at the heart of the applicants' claim against the Council.

8 The LIM recorded that a code compliance certificate for the building had been issued on 16 April 2002. It is not in issue that that statement in the LIM is factually correct. A code compliance certificate had been issued on that date by Approved Building Certifiers Ltd (ABC Ltd), a building certifier under the Building Act 1991. The Building Act made provision for building certifiers to provide inspection and certification services. Building certifiers had to be approved by the industry regulator, the Building Industry Authority. The legislation in this regard, and its implications in respect of claims relating to leaky homes, was discussed by the Supreme Court in McNamara v Auckland City Council. 4

9 The essence of the applicants' claim against the Council is, firstly, that the LIM does not state whether the code compliance certificate was issued by the Council or a building certifier. The applicants contend that the Council should have

stated in the LIM that the code compliance certificate had been issued by a building certifier and named the certifier

10 It is further contended that the Council should have included in the LIM, in connection with the code compliance certificate, information it had received from the Building Industry Authority that ABC Ltd had been deregistered as a certifier by the Building Industry Authority, and the reasons why ABC Ltd had been deregistered. The pleading about the information received is as follows:

• 76. That on 7 September 2004 the Building Industry Authority pursuant to its statutory powers:

  • a. deregistered ABC as a certifier on the grounds that ABC had in the performance of its duties been negligent and incompetent;

  • b. informed the Council of the deregistration of ABC and the grounds of deregistration.

  • c. informed the Council that the Authority found ABC to have been negligent and incompetent in the following respects:

    • 

      Issuing code compliance certificates and interim code compliance certificates for buildings outside the scope of its approval

    • 

      Inadequate record keeping and irregularities relating to the signature of inspection-related documents

    • 

      Faulty inspections on which code compliance certificates were issued

    • 

      Inspecting work that had not received a consent.

11 The applicants contend that the Council was statutorily bound to supply this information in the LIM and was negligent in not recording it in the LIM. The statutory foundation for the claims is s 44A of the Local Government Official Information and Meetings Act 1987. This provision, with some omissions, is as follows:

44A Land information memorandum

• (1) A person may apply to a territorial authority for the issue, within 10 working days, of a land information memorandum in relation to matters affecting any land in the district of the authority.

• (2) The matters which shall be included in that memorandum are—

  • (a) Information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that—

    • (i) Is known to the territorial authority; but

    • (ii) Is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991:

  • (b) Information on private and public stormwater and sewerage drains as shown in the territorial authority's records:

  • (ba) any information that has been notified to the territorial authority by a drinking-water supplier under section 69ZH of the Health Act 1956:

  • (bb) information on—

    • (i) whether the land is supplied with drinking water and if so, whether the supplier is the owner of the land or a networked supplier:

    • (ii) if the land is supplied with drinking water by a networked supplier, any conditions that are applicable to that supply:

    • (iii) if the land is supplied with water by the owner of the land, any information the territorial authority has about the supply:

  • (c) Information relating to any rates owing in relation to the land:

  • (d) Information concerning any consent, certificate, notice, order, or requisition affecting the land or any building on the land previously issued by the territorial authority (whether under the Building Act 1991, the Building Act 2004, or any other Act):

  • (e) Information concerning any certificate issued by a building certifier pursuant to the Building Act 1991 or the Building Act 2004:

  • (ea) information notified to the territorial authority under section 124 of the Weathertight Homes Resolution Services Act 2006:

  • (f) Information relating to the use to which that land may be put and conditions attached to that use:

  • (g) Information which, in terms of any other Act, has been notified to the territorial authority by any statutory organisation having the power to classify land or buildings for any purpose:

  • (h) Any information which has been notified to the territorial authority by any network utility operator pursuant to the Building Act 1991or the Building Act 2004.

• (3) In addition to the information provided for under subsection (2) of this section, a territorial authority may provide in the memorandum such other information concerning the land as the authority considers, at its discretion, to be relevant.

• …

The applicants rely, in particular, on s 44A(2)(e) and (3).

12 The applicants plead two causes of action. The first rolls together claims of breach of statutory duty and negligence, as follows:

• 79. That in breach of its statutory duty and/or negligently the Council in the [LIM] failed and/or omitted to state as required by...