DECISIONS

The property the subject of the claim was originally constructed and operated as a motel.  In 2000 a development company applied to the council for consent to convert the building into apartments.  When the construction was completed, the developer converted the property into unit titles which were then marketed as investment opportunities in a “qualified serviced apartment resort” of “12 managed apartments”.  Subsequent owners discovered defects in the apartments and issued proceedings.

The high court struck out the claim by the plaintiffs against the Far North District Council.  It held that the body corporate and the owners of the units were not owed duties of care as they did not fall within the category of individuals for whom the council should bear responsibility for any financial losses arising from building defects.

The court acknowledged that whilst the building operated as short stay resort accommodation (similar to a motel), the owners could use the apartments as their residences if they so wished.  For that reason the building did not fall naturally within a class of building where duties had either found or had not been found to exist as between the owners and a council. 

However, at the time of the application for the consent, the indication was that the primary use of the building, both as a whole and as separate apartments, was intended to be as a hotel/motel rather than as a private dwelling.  Additionally, the building had been used in such a manner since the building had been built.  In summary, the designation of the building as “apartments” was not enough to characterise the development as residential.  The intended use, appearing from contemporaneous documents, was commercial.

In addition any claim pursued on the basis that a duty of care was based for reasons of health and safety, does not create the existence of a duty that might otherwise be found to have existed.

Lastly, the high court dismissed the claim by some of the plaintiffs that they could alternatively recover on the basis that they had relied upon the code compliance certificate issued by the council as a representation that the units they were intending to buy were code compliant.  In respect of those five plaintiff owners, they had completed their purchases before the code compliance certificates had been issued.

The applicant applied for the media to film for television the hearing of an appeal from the weathertight homes tribunal to the district court. 

The district court whilst agreeing that the key consideration was a desirability for open justice but there were two other considerations being physical restraints within the court room and a concern as to the level of independence of the intended production. 

The court advised that Mr Grey (the individual involved in promoting the programme) is an active campaigner and the information before the court provided a clear indication of his own partisan tendencies which could not be disregarded.  The court was concerned to ensure that on one hand whilst the eyes of the public are not prevented from seeing what takes place in the courts, that they should not be mislead about the court.  The court hastened to add that it was not accusing anybody of that but it was simply one of the matters that the court had to have regard to.  The court was also concerned about the impact that the filming might have on those appearing on the appeal.  

For this reason the application was declined.