A high-profile developer has had its application for summary judgment declined by the High Court.
The developer sought summary judgment against Christchurch City Council (CCC) in respect of two fire design related defects that it said had caused significant loss. The developer argued that the council had negligently processed and issued the building consent and said that the council had no defence to the claim. The developer sought summary judgment on both liability and quantum for remedial construction costs, and consequential costs, for the multi-unit development.
CCC opposed the application for reasons including that the scope of any duty owed by CCC to the developer was unclear, that it had defences, and that the case was unsuitable for summary judgment. CCC also argued that it would be unfair to enter summary judgment against it, and not any other parties involved in the construction, who had also allegedly erred.
The High Court agreed. The Court confirmed that the extent and scope of the alleged duty of care owed by CCC was not a matter for summary judgment and that the developer’s approach brought an overly narrow focus to the obligations of CCC.
In dismissing the application, the High Court found that the scope of any duty owed by CCC, issues of reasonable foreseeability, and whether CCC had breached its duty were not matters suitable for summary judgment. The Court also observed that contributory negligence needed to be considered and that there were substantial issues in relation to the alleged loss.
Brief comments
This type of application is relatively unusual in building negligence cases, as it is such a high bar to get summary judgment. Councils are entitled to raise defences to claims, and finding summary judgment against just the council, and not the other parties involved in construction, would, in our view, be unfair.
The decision confirms that, as a general rule, summary judgment is not an appropriate forum for determining such claims – which should help discourage similar applications in the future.
Charlotta Harpur and Sarah Farnell were pleased to assist CCC in defending this application. A copy of the decision can be found here.
