A builder's duty of care - When should it apply to the directors and employees of companies involved in the creation of defective buildings?

<p>This thesis considers the issue of when a tortious duty of care to prevent economic loss should be imposed on the company directors and employees who stand behind the complex structure of companies and contracts involved in the creation of a defective building. Set against the background of the leaky building crisis, and what are (it is argued) unfair litigation outcomes, the thesis traverses the emergence and development of the principles that underpin liability for negligence and negligent misstatement in respect of defective buildings. A review of the cases confirms that the concepts of control and general reliance are the basis of New Zealand law in this area. There follows a discussion of the difficult relationship between company law principles and negligence principles, and the role of assumption of responsibility in the law of negligence and negligent misstatement, including a discussion of developments in the leaky building litigation. The thesis advanced is that, in respect of the creation of defective buildings, the approach to the issue of whether to impose a duty of care on company directors and employees would benefit from placing significant weight on the factor of de facto control of the inputs that dictate the outcome of a building project, and on the lower level factor of a direct or indirect financial interest in the outcome of the project. It is argued that the approach to imposing a duty of care should be the same for directors and employees and in respect of statements and actions. In cases where the evidence establishes that the financial interest factor is not present, this should give rise to an inference that the company director or employee does not have control of the inputs that dictate the outcome of the project, so that no duty of care arises. This would enable a director or employee to exit litigation by way of an application for summary judgment. This is intended to discourage the practice of joining minor parties to litigation for the purpose of extracting a precautionary settlement. If control of the inputs that dictate the outcome of a project can be established by inference from the existence of the financial interest factor, or by the other evidence, then the two stage approach to the imposition of a duty of care would require a consideration of other factors that might negate the duty, such as the contractual matrix.</p>

A builder's duty of care - When should it apply to the directors and employees of companies involved in the creation of defective buildings?

<p>This thesis considers the issue of when a tortious duty of care to prevent economic loss should be imposed on the company directors and employees who stand behind the complex structure of companies and contracts involved in the creation of a defective building. Set against the background of the leaky building crisis, and what are (it is argued) unfair litigation outcomes, the thesis traverses the emergence and development of the principles that underpin liability for negligence and negligent misstatement in respect of defective buildings. A review of the cases confirms that the concepts of control and general reliance are the basis of New Zealand law in this area. There follows a discussion of the difficult relationship between company law principles and negligence principles, and the role of assumption of responsibility in the law of negligence and negligent misstatement, including a discussion of developments in the leaky building litigation. The thesis advanced is that, in respect of the creation of defective buildings, the approach to the issue of whether to impose a duty of care on company directors and employees would benefit from placing significant weight on the factor of de facto control of the inputs that dictate the outcome of a building project, and on the lower level factor of a direct or indirect financial interest in the outcome of the project. It is argued that the approach to imposing a duty of care should be the same for directors and employees and in respect of statements and actions. In cases where the evidence establishes that the financial interest factor is not present, this should give rise to an inference that the company director or employee does not have control of the inputs that dictate the outcome of the project, so that no duty of care arises. This would enable a director or employee to exit litigation by way of an application for summary judgment. This is intended to discourage the practice of joining minor parties to litigation for the purpose of extracting a precautionary settlement. If control of the inputs that dictate the outcome of a project can be established by inference from the existence of the financial interest factor, or by the other evidence, then the two stage approach to the imposition of a duty of care would require a consideration of other factors that might negate the duty, such as the contractual matrix.</p>

Should the courts assess the merits of a dispute referred to arbitration?

<p>Article 8(1) of Schedule 1 of the Arbitration Act 1996 requires courts to stay proceedings brought on a matter which is the subject of an arbitration agreement except where there is in fact no dispute. The Court of Appeal in Zurich v Cognition interpreted this exception as allowing the courts to assess whether the defendant has an arguable defence to the summary judgment proceedings brought against it. By allowing the court to assess the merits of a dispute referred to arbitration New Zealand is inconsistent with the theoretical and international understandings which require the independence of international arbitration. Court proceedings on a matter referred to arbitration have the potential to rob the parties of the benefits of persisting with arbitration. It is therefore necessary to consider alternatives to art 8(1) which are principally, comparatively and practically sound.</p>

Should the courts assess the merits of a dispute referred to arbitration?

<p>Article 8(1) of Schedule 1 of the Arbitration Act 1996 requires courts to stay proceedings brought on a matter which is the subject of an arbitration agreement except where there is in fact no dispute. The Court of Appeal in Zurich v Cognition interpreted this exception as allowing the courts to assess whether the defendant has an arguable defence to the summary judgment proceedings brought against it. By allowing the court to assess the merits of a dispute referred to arbitration New Zealand is inconsistent with the theoretical and international understandings which require the independence of international arbitration. Court proceedings on a matter referred to arbitration have the potential to rob the parties of the benefits of persisting with arbitration. It is therefore necessary to consider alternatives to art 8(1) which are principally, comparatively and practically sound.</p>

Eli Lilly and CO v Genentech, Inc

H1 European patents – Revocation proceedings – Divisional Patents – Pharmaceuticals –Preliminary issue – Summary judgment - Issue estoppel – Abuse of process – UK designation of closely related patent held invalid at first instance – Permission granted to appeal to the Court of Appeal - Related patent now also held invalid in central proceedings before the EPO – Special circumstances – Injustice – Application to amend claims – Plausibility – Changes in common general knowledge – Case management

14. Interim Applications—Common Types

This chapter considers the interim applications that a legal representative may most often come across in practice. It looks at the procedure for the specific interim application. Then it discusses the form of the evidence needed to make or oppose it. The interim applications considered here include an application to set aside default judgment; summary judgment; interim payment; an application for specific disclosure; an application for security for costs; and an application for an injunction.

A Practical Approach to Civil Procedure

A Practical Approach to Civil Procedure guides the reader through the procedural requirements employed in the civil courts. The volume provides an overview of the key statutory provisions, rules, practice directions, and case law which govern the various stages of a civil litigation claim. Providing practical guidance, the text charts the progress of a typical civil litigation claim, from funding litigation, the importance of alternative dispute resolution processes, issuing and serving proceedings, case management, and through to trial, enforcement, and appeal. Relevant sample documentation is featured throughout and introduces the forms and documents which will be encountered in practice, while key points summaries featured at the end of chapters highlight the essential points covered. This edition has been revised to incorporate rule changes up to the Civil Procedure (Amendment No 2) Rules 2021 and the 129th Update. Changes incorporated into the new edition include: Pre-action protocol for small claim road traffic accident cases and the new PD 27B; procedural aspects of the tariff system for whiplash injuries under the Civil Liability Act 2018; recent case law on service of claim forms and particulars of claim; revised rules on costs management; changes to the rules on statements of truth; revisions to the chapter on summary judgment, including the cheque rule and the approach taken in summary judgment applications for discretionary remedies; replacement PD 51U on disclosure of documents in the Business and Property Courts; case law developments on legal professional privilege and without prejudice privilege; developments on search orders, and case law on imaging orders; further guidance on remote hearings; and debt respite procedures.

24. Summary Judgment

Summary judgment is used where a purported defence can be shown to have no real prospect of success and there is no other compelling reason why the case should be disposed of at trial. The procedure for entering summary judgment is not limited to use by claimants against defendants. Defendants may apply for summary judgment to attack weak claims brought by claimants. This chapter discusses time for applying for summary judgment; defendant’s application for summary judgment; excluded proceedings; orders available; amendment at hearing; other compelling reasons for a trial; directions on summary judgment hearing; and specific performance, rescission, and forfeiture in property cases.

Summary judgment — Quo vadis?

The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.