Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council and Others
| Jurisdiction | New Zealand |
| Judge | Mander J |
| Judgment Date | 25 June 2014 |
| Neutral Citation | [2014] NZHC 1439 |
| Docket Number | CIV 2010-425-588 |
| Court | High Court |
| Date | 25 June 2014 |
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CIV 2010-425-588
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
Application by the first and second third parties that causes of action in the first defendant's statement of claim be struck out on the grounds they were statute barred under s393 Building Act 2004 (“BA”) (limitation defences — 10 years) — defective building — plaintiff claimed negligent advice, breach of Fair Trading Act 1986 (“FTA”) — plaintiff was granted building consents by the first defendant to construct an indoor sport and leisure complex — the architectural plans and structural plans were prepared by the second defendant in 1999 — during construction it became apparent that several steel trusses which spanned the roof were visibly sagging — plaintiff then engaged in 2000 and in 2006 the second third party's firm of engineers to review the structure and design to ensure the roof was strong enough — the roof subsequently collapsed in 2010 after a snowstorm — whether the advisory report and remedial design work was within the definition of “building work” under the BA — whether s393 BA included claims under the FTA.
No appearance by or for for Plaintiff
D J Heaney QC and K B Dillon for First Defendant
No appearance by or for Second Defendant
K Harkess for Third Parties
JUDGMENT OF Mander J
This is an application by the first and second third parties that causes of action in the first defendant's statement of claim be struck out. The third parties submit that four of the five claims of action alleged are statute barred by s 393 Building Act 2004 (“the Act”), being civil proceedings relating to building work that have been brought more than 10 years after the dates of the acts or omissions on which the proceeding is based.
In 1999 the plaintiff, Southland Indoor Leisure Centre Charitable Trust (“the Trust”), was granted building consents by the first defendant, Invercargill City Council, to construct an indoor sport and leisure complex, Stadium Southland. The building consents were based on architectural plans which included structural plans prepared by a consulting engineer, Mr Major, the second defendant.
During construction it became apparent that several of the steel trusses which spanned the roof of the community courts section of Stadium Southland (the “community courts trusses”) were visibly sagging. In November 1999, the Trust engaged the second third party's firm of engineers, Harris Consulting Limited, to peer review the original design of the community courts trusses to ensure that the structure following remedial work was sound and within acceptable design standards. In December 1999, Harris Consulting Ltd, the first third party, provided a structural review report (“Structural Review”) which identified defects in the design of the trusses, concluding that they did not meet the loading requirements of the New Zealand Building Code.
The consulting engineer, Mr Major, subsequently prepared a structural steel modification drawing (drawing 97139) which provided for modifications to be made to the community courts trusses. On 4 January 2000, Harris Consulting Ltd provided a producer statement – PS2 Design Review which incorporated remedial detail in respect of the modification work to the community courts trusses (“Design Review”). It also provided a letter dated 4 January 2000 which formed part of the producer statement and included the proposed remedial detail (“letter”). A producer statement was a statement that could be supplied under the Building Act 1991 (“the 1991 Act”) by or on behalf of an applicant for a building consent that work had been carried out in accordance with certain technical specifications and which could be
accepted by a territorial authority as establishing compliance with the provisions of the building code. 1
On 14 January 2000, the Council issued a building consent for the modification work to be completed in accordance with the revised design prepared by Mr Major as contained in drawing 97139. A condition of the building consent was that this design incorporated the remedial detail prepared by Harris Consulting Ltd. The building consent contained, inter alia, the following conditions:
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4. Consulting engineer Mr Major to confirm in writing to council that the six community courts trusses precamber is in line with Harris Consulting letter dated 4.01.2000, and individual trusses measurements are to be included in the record.
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5. Producer Statement Construction Review required from Mr Major for remedial work to the 6 Community Courts trusses.
The modification work to the community courts trusses was subsequently carried out in January 2000. On 20 November 2000, the Council issued a code compliance certificate for the building consent for the community courts truss modification work. On 17 January 2001, Mr Major provided a further producer statement – construction (PS4) which certified, inter alia, that the community courts truss modification work had been generally constructed in accordance with the details shown in drawing 97139.
In April 2006, the Trust became aware of movement in the roofline of the stadium where the trusses spanned over the community courts. As a result, on 12 April 2006, the Trust engaged Mr Harris and his firm to review the roof structure to ensure that the building was safe in the event of snowfall on the roof. On 9 June, Mr Harris provided a report which confirmed:
That the strength of the trusses over the community courts was adequate to support the designed loads specified in the relevant codes when constructed. We have also had a look at the loads specified in AS/NZS1170 the loading code now being used. The loading changes for both wind and snow are not critical.
On 18 September 2010, Stadium Southland's roof collapsed following a heavy snowstorm. As a result, the Trust commenced proceedings against the
Council and the consulting engineer, alleging that the collapse of the roof was caused by the failure of the community courts trusses. In particular, the Trust claimed that the failure of the trusses was caused or contributed to by defects in the design and construction of the modification work carried out on the community courts trusses.
The Council denied liability to the Trust and issued proceedings against Mr Harris and his firm, Harris Consulting Ltd.
The Council alleges that Mr Harris's firm was engaged to provide structural engineering peer review services for the original design and redesign of the community courts roof trusses. The Structural Review of December 1999 and the Design Review and letter of 4 January 2000 provided to the Council, concluded that the redesign of the community courts trusses would comply with ultimate code loads once upgraded. In its statement of claim the Council pleads five causes of action against the first and second third parties. The five causes of action are as follows:
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(a) Negligent advice: That Mr Harris and his engineering firm owed a duty of care to the Council and breached that duty of care in the advice provided in the Structural Review and Design Review and letter which the Council relied upon.
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(b) Breach of Fair Trading Act 1986: The Structural Review and Design Review and letter contained statements that were misleading or deceptive and in breach of s 9 of the Fair Trading Act 1986. Compensation is sought pursuant to s 43(2)(d) of that Act.
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(c) Breach of Fair Trading Act 1986: The third cause of action effectively repeats the second cause of action but relates to the report provided to the Council of 9 June 2006 which contained statements that the strength of the trusses over the community courts was adequate in the event of heavy snowfall.
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(d) Concurrent tortfeasor – negligence: That the third parties owed the Trust a duty to exercise reasonable skill and care in carrying out their
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role as peer review structural engineer and providing remedial detail for a modified design in 1999/2000 and in the 9 June 2006 report.
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(e) Concurrent tortfeasor – negligent advice: The advice in the Structural Review and Design Review and letter, together with the June 2006 report reviewing that design and providing an update on the adequacy of the loading on the roof, was provided in breach of the third parties' duty of care owed to the Trust.
The third parties apply to strike out the Council's claims against it insofar as the Council's causes of action relate to the Structural Review and Design Review and letter. A claim, founded on an alleged breach of the Fair Trading Act 1986 based upon representations contained in the June 2006 report is not challenged.
The strike out application is based on a submission that the Council's third party claims are statute barred by s 393 of the Act. That provision provides:
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(1) The Limitation Act 2010 applies to civil proceedings against any person if those proceedings arise from—
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(a) building work associated with the design, construction, alteration, demolition, or removal of any building; or
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(b) the performance of a function under this Act or a previous enactment relating to the construction, alteration, demolition, or removal of the building.
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(2) However, no relief may be granted in respect of civil proceedings relating to building work if those proceedings are brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.
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(3) For the purposes of subsection (2), the date of the act or omission is,—
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(a) in the case of...
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