IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2013] NZHC 913. WILKINSON BUILDING & CONSTRUCTION LIMITED First Respondent

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2013] NZHC 913 IN THE MATTER OF an appeal under Section 93 of the Weathertight Homes Resolution Services Act 2006 BETWEEN HITEX BUILDING
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2013] NZHC 913 IN THE MATTER OF an appeal under Section 93 of the Weathertight Homes Resolution Services Act 2006 BETWEEN HITEX BUILDING SYSTEMS LIMITED First Appellant IAN CONRAD HOLYOAKE Second Appellant AND WILKINSON BUILDING & CONSTRUCTION LIMITED First Respondent R A J WILKINSON Second Respondent AUCKLAND COUNCIL Third Respondent R J & S K ZAGORSKI Fourth Respondents T BURCHER Fifth Respondent R ANGEL Purported Third Party Hearing: 16 April 2013 Counsel: A J Thorn for the Appellants C D Boell for the First and Second Respondents; and for M C Black for the Fifth Respondent P A Robertson for the Third Respondent S Robertson and E E Cowle for the Fourth Respondents No Appearance of or for the Purported Third Party Judgment: 30 April 2013 HITEX BUILDING SYSTEMS LTD and ANOR v WILKINSON BUILDING & CONSTRUCTION LTD and ORS HC AK CIV [30 April 2013] JUDGMENT OF DUFFY J This judgment was delivered by Justice Duffy on 30 April 2013 at 4.30 pm, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Adina Thorn Limited P O Box 1753 Shortland Street Auckland 1140 for the Appellants Short and Partners P O Box Parnell Auckland 1151 for the First and Second Respondents (and on Instructions for M C Black for the Fifth Respondent) Heaney and Co P O Box Auckland City Auckland 1143 (DX CP 18503) for the Third Respondent Kensington Swan Private Bag Victoria Street West Auckland 1142 (DX CP22001) for the Fourth Respondents Copy To: M C Black P O Box 1984 Shortland Street Auckland 1140 [1] The first and second appellants are appealing against a decision of the Weathertight Homes Tribunal (the Tribunal) finding them responsible for weathertight issues suffered by a dwellinghouse in Meadowbank, Auckland. The first appellant is a registered company responsible for affixing new cladding, which was found to be defective, to the dwellinghouse; the second appellant is a director of the first appellant. They have filed an application for leave to adduce further evidence in the appeal. The further evidence is to be found in annexures to the first and second affidavits of the second appellant, as well as the narrative in the first affidavit. The application is opposed by the respondents. [2] During the course of hearing the appellants submissions, it became clear that the further evidence that they seek to adduce in the appeal can be categorised as follows: (a) Evidence which the Tribunal had refused to admit before it; (b) Evidence that was available at the time of the relevant Tribunal hearings (of which there were four) but, for whatever reason, no attempt was made to adduce this evidence before the Tribunal; (c) Evidence that was not relevant to the issues that the Tribunal was to determine and which became available either at the time of the hearings or later, and which is relevant to the determination of the appeal solely in regard to the appeal grounds alleging improper and unfair procedural conduct by the Tribunal; and (d) Evidence that would already be before the appellate court, or which can be classified as miscellaneous. I will deal with each category in turn. Relevant principles [3] In general, appeals proceed on the basis of the evidence that was before the decision-maker at first instance and parties are not to have the opportunity to bolster their case with new evidence on appeals. Nonetheless, r of the High Court Rules permits the admission of further evidence on appeal with leave of the Court if there are special reasons for doing so. Before leave is granted, the Court must be satisfied that the further evidence is material and cogent, likely to be material and could not reasonably have been available at the time of the first hearing: a concise statement of the principles governing the exercise of the former r 716 exercise is to be found in Culverden Retirement Village Limited v McLuckie HC Auckland CIV September 2007, Andrews J. Andrews J summarised the principles at [16]: The discretion is sparingly exercised and the presumption is that appeals will be heard on the record, as it exists. In order to satisfy the test the evidence must be cogent and likely to be material and could not reasonably have been produced at first instance. These principles are equally applicable to r [4] At the same time, as was recognised in Comalco NZ Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 (HC) (at 579): the test should not be put so high as to require the circumstances to be wholly exceptional. Every case must be considered in relation to its own circumstances. [5] Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC) recognises that applications to adduce further evidence should be considered in relation to their circumstances and that there may be occasions when further evidence is admitted on appeal, even though it was reasonably available for the hearing of first instance (see [18] [21]). However, such exceptions will be rare and the further evidence would need to be cogent and material to the appeal s resolution for this to occur. [6] There are strong policy reasons in favour of exercising leave to adduce further evidence being exercised sparingly, especially when the decision under appeal is from an expert body created by statute: see Rugby Union Players Association v Commerce Commission [1997] 3 NZLR 79 (HC), a decision in which Barker J expressed the concerns behind such reasons in the context of an appeal against a decision of the Commerce Commission. I consider that those concerns are equally applicable to a specialist body like the Tribunal. They are as follows: (a) The Court must be alert against allowing an appeal against a decision of an expert body, reached after a somewhat distinctive procedure, to be converted into a new trial on appeal; (b) The hearing before that expert body must not be allowed to be treated as a dummy run ; this consideration must weigh strongly against permitting further evidence that is little more than an improvement upon, or a revised version of the evidence before the expert body; (c) Leave will be particularly hard to obtain where the grant of leave would in effect require the Court to rehear all relevant expert evidence, thus resulting in a new trial before the appellate court; and (d) An additional factor I consider important here would be the potential that any such rehearing would require further experts conferences and cross-examination of opposing parties experts. [7] One circumstance where leave is more readily granted is where the evidence is in the nature of updating evidence that was not available at the time of the hearing: see Rugby Union at 83. Category A evidence [8] Evidence which the Tribunal refused to admit cannot be the subject of an application to adduce further evidence for the appellate court to consider in determining the merits of the substantive decision under appeal. This is not further evidence; it is existing evidence that the Tribunal excluded. The appellants cannot avoid the effect of the Tribunal s evidential ruling excluding their evidence by subsequently applying to adduce the same excluded evidence, or a revised version of that evidence in the appeal against the Tribunal s decision on the substantive matter. Instead, their remedy is to appeal against the Tribunal s decision to exclude their evidence as part of their general appeal against the outcome before the Tribunal. Accordingly, insofar as the appellants application to adduce further evidence seeks to avoid the Tribunal s decision not to admit the evidence, the application is dismissed. [9] On the other hand, when it comes to determining the ground of appeal challenging the Tribunal s decision not to admit the evidence, such evidence is relevant and should be before the court hearing the appeal. The appellate court will need to view the evidence as part of assessing whether or not the Tribunal was right not to admit it. The respondents did not oppose the category A evidence being before the appellate court for this purpose. For that limited purpose only, leave is granted to adduce the evidence in category A. [10] This evidence is as follows: (a) Brief of evidence of Dr AG Spiers (annexure M to the second appellant s first affidavit); (b) Affidavit of Paul Probett (annexure N to the second appellant s first affidavit); (c) Supplementary brief of evidence of Alan Light (annexure O to the second appellant s first affidavit); (d) Brief of evidence of Mark Hazlehurst (annexure P to the second appellant s first affidavit); (e) A transcript of a meeting on 20 May 2010 and a CD Rom recording of the meeting (annexure G to the second appellant s first affidavit); and (f) A letter from the Tribunal dated 10 September 2012 refusing to accept the transcript and CD Rom, being annexure G above (annexure H to the second appellant s first affidavit). [11] For completeness, I record that the Tribunal s procedural order refusing to admit the evidence in annexures M, N, O, and P is to be found in annexure 21 of the fourth respondents affidavit. Category B evidence [12] This evidence is as follows: (a) A copy of a PowerPoint presentation compiled by the second appellant showing a visual summary of where the defects are (annexure B to the second appellant s first affidavit); and (b) Copy of a report of Scion Research on the Efficacy of Brush-on Remedial Treatments on Radiata Pine Framing dated September 2012 and a copy of a similar report by Scion to the Department of Building and Housing dated June 2012 (attached as annexures I and J respectively to the second appellant s first affidavit). [13] The copy of the PowerPoint presentation (annexure B) presents a number of problems. First, it is evidence that was available at the time of the hearing. Secondly, it goes beyond evidence of fact and includes opinion evidence from the second appellant about the cause of the weathertight defects of the dwellinghouse. Whilst he may know something of the cladding system and be able to opine on whether weathertight defects stem from the cladding or not, the difficulty is that he is not an independent expert. Instead, he is someone who has a very real stake in the outcome of the proceeding. Thus, he is not competent to provide opinion evidence on the cause of the weathertight defects. Thirdly, the admission of this evidence would in turn require the court to permit the relevant experts who gave evidence at the hearing the opportunity to comment on this evidence. Cross-examination would be required if the experts were not agreed. Essentially, the admission of this evidence would result in a fresh trial before the appellate court. I find, therefore, that the evidence in annexure B cannot be used as evidence to challenge the correctness of the Tribunal s findings. [14] On the other hand, annexure B has relevance when it comes to the grounds of appeal based on procedural impropriety. Part of the appellants complaint is that the Tribunal denied them the opportunity to present the PowerPoint presentation. They say that in the middle of the cross-examination of the second appellant, the Tribunal interpolated the evidence of the group of experts. Because the second appellant was under cross-examination, he thought he could not speak with his solicitor, and so he did not discuss with his solicitor putting the PowerPoint presentation to the group of expert witnesses. His solicitor raised this issue with the Tribunal after the experts had given their evidence. The appellants say that they were told they would have an opportunity to raise the matter with the experts, there was an adjournment and when the Tribunal hearing resumed, the experts had gone. Thus, they say they were wrongly deprived of the opportunity to put the PowerPoint presentation to the expert witnesses. [15] There is no evidence that the appellants solicitor complained at the time and sought to have the experts recalled. Nor is there evidence that the appellants solicitor sought to have the prohibition on a witness speaking with his or her solicitor while under cross examination amended to allow for discussion about the evidence of the expert witnesses. In principle, had the second appellant completed his evidence, he would have been present for the experts evidence and able to instruct his solicitor in terms of the response to be taken to that evidence. [16] To what extent the Tribunal, rather than the appellants solicitor, can be held responsible for what occurred will be an issue for the appellate court. However, in order to develop the argument that the Tribunal has contributed to a procedural irregularity, which resulted in the appellants being deprived of the opportunity to put evidence in annexure B to the expert witnesses, the appellants want to have the subject evidence before the appellate court. Further, in order for the appellate court to determine if there was a procedural irregularity and, if so, whether it had a material effect on the outcome of the appeal, the court will need to assess the evidence, including its quality and whether it would have been admissible or not (given the concerns I have identified in [6] above. For this limited purpose, I find that the evidence in annexure B can be admitted as evidence for the appeal. [17] The appellants seek to adduce the documents in annexures I and J on the ground that they reveal that the application of the brush-on remedial treatment (used to treat the radiata pine framing of the dwellinghouse) demands a much heavier application of this product than was actually used. However, both documents were created over six years after the framing of the dwellinghouse was treated with brushon remedial treatment. The appellants have no evidence to show that what is disclosed in the documents was known at the time the framing of the dwellinghouse was treated in this way. [18] Any alleged negligence relating to the treatment of the dwellinghouse s framing has to be assessed according to the standards of the time. Unless it can be shown that the need for a heavier application of the remedial treatment was known at the material time, (when it was applied to the dwellinghouse), this information is irrelevant. If the information was available at the material time, the appellants would have then had to overcome the hurdle of satisfying the Court of why it should permit further evidence on appeal that was available at the time of the hearing before the Tribunal. [19] As there is nothing to indicate that the information in annexures I and J was known at the material time, I consider the information is irrelevant and, for this reason, I refuse leave to adduce it as evidence on the appeal. Category C evidence [20] This evidence is as follows: (a) A copy of correspondence with the Tribunal s Registry (annexure C to the second appellant s first affidavit); (b) Copy of an audio-recording of a discussion with one of the Tribunal members with the second appellant (annexure D to the second appellant s first affidavit); (c) A copy of wrongly sent by the Tribunal s Registry to the second appellant (annexure E to the second appellant s first affidavit); and (d) Copies of a selection of photographs from 375 photographs taken by the assessor of this claim (annexure L to the second appellant s first affidavit). [21] The two s are relied on to found an argument that the Tribunal was biased against the appellants. The in annexure C shows the second appellant seeking information from the Tribunal under the Official Information Act The appellants contend that the response reveals the Tribunal being unhelpful. The attached as annexure E contains a derogatory reference to the second appellant. The reference is made by a case officer of the Tribunal. The was mistakenly sent to the second appellant; who the intended recipient was is unknown. The appellants rely on both s to establish a factual foundation from which the appellate court will be invited to draw the inference that the Tribunal was not dealing with the appellants in an open, fair and impartial way. [22] The recording that forms part of annexure D was made of a conversation between one of the members of the Tribunal and the second appellant at a time when he was representing himself. The conversation refers to the appellants being given an opportunity to address certain issues of concern at the hearing. They contend that the Tribunal acted improperly and unfairly by never giving them the opportunity that was promised. [23] The appellants want to introduce a selection of photographs from a collection of photographs taken by an assessor for the claim before the Tribunal. The entire collection of photographs was made available to all parties, but no one introduced them into evidence. The appellants contend that they were not aware of the photographs as they were sent by the Tribunal to the appellants solicitor. They say that the Tribunal had directed that they, as well as their solicitor, would be sent commentaries. However, the Tribunal s direction relates to copying s to the appellants personally. The direction goes no further than this and the photographs were posted to the parties with an accompanying letter. [24] Thus, the appellants argument on appeal will have to address the question of whether service on their solicitor was insufficient in the circumstances. They want to be able to refer the appellate court to the subject photographs to depict the evidence that they were denied the opportunity of presenting to the Tribunal, though the Tribunal s failure to ensure the existence of the assessor s photographs was brought to the appellants personal attention. For the reasons set out below, I consider the evidence in annexure C is admissible on appeal. [25] However, the appellants also sought leave to adduce the photographs in annexure C for the purpose of challenging the conclusion the Tribunal reached on the merits of the appeal. This application is premature. Until the procedural question is determined, no decision can be made on the wider use of this evidence. I leave this for the appellate court to determine. [26] All the evidence in category C is relevant to grounds of the appellants appeal that relate to whether the Tribunal conducted itself in accordance with procedural propriety. The evidence was not relevant to the issues before the Tribunal. This is the first opportunity the appellants have had to adduce this evidence. I find, therefore, that each piece of evidence in this category can be adduced for the purpose I have outlined. Category D evidence [27] The evidence in this category is either in the form of duplication of evidence already before the appellate court, or evidence that is irrelevant. [28] Annexures A and F to the second appellant s first affidavit comprise the transcript of the evidence before the Tribunal. An order has been made by this Court for the transcript to be filed in the appeal. The transcript of the hearing at first instance is something that would always be available for the appeal court to consider. It is unnecessary for the appellants to attempt to introduce the transcript in the form of fresh evidence. For that reason, annexures A and F are no more than a duplication of material already before the appellate court. [29] There is an invoice dated 29 June 2004 which appears as annexure K to the second appellant s first affidavit. This document was admitted into evidence by the Tribunal. Its inclusion in the present application is an oversight on the part of the appellants. There is no basis for permitting duplication of evidence; it needlessly prolongs the proceeding (see s 8(1)(b) of the Evidence Act 2006). [30] Annexure Q is a copy of an between the appellants and the Tribunal s Registry, which requests information under the Official Information Act. At the hearing, the appellants accepted that the communication was irrelevant. [
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