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Inlet Storage Ltd v United Movers Ltd [2021] NZDC 23513

Published 02 December 2022

Reserved judgment — strike-out application — lease — asbestos contamination — insurance policy — exoneration from liability — principles of statutory interpretation — “in respect of” — Property Law Act 2007, ss 268 & 269 — Health and Safety at Work Act 2015 — Health and Safety at Work Act 2015, s 105 — Interpretation Act 1999, s 5(1) — District Court Rules 2014, r 15.1 — Agreement to Lease (ADLS 6th edition 2012) Form — Galbraith v Alderson Logistics Limited [2013] NZHC 3102 — Holler v Osaki [2016] NZCA 130 — Sheehan and Ors Trading as Otahuhu Joint Venture Partnership v Watson and Anor [2010] NZCA 454 — Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 — Body Corporate 200012 v Eden Village Limited (in liq) HC Auckland CIV-2006-404-1931, 14 November 2011 — Linklater v Dickison [2017] NZHC 2813 — Galbraith v Alderson Logistics Limited [2013] NZHC 3102 — A-G v McVeagh [1995] 1 NZLR 558 — Law Commission The Property Law Act 1952: A discussion paper (NZLC PP16, 1991) — Law Commission A New Property Law Act (NZLC R29, 1994). These proceedings arose from a fire at a warehouse. The plaintiff was the owner of the land where the warehouse stood, and the defendant had been the tenant of the warehouse at the time. The warehouse roof contained asbestos, meaning that after the fire nearby properties had to be tested for contamination and cleaned up. The plaintiff brought the action to recover some of the costs it incurred from the testing and cleanup. In the current proceedings the defendant sought to strike out the plaintiff's causes of actions. The defendant argued that the causes of actions were barred by ss 268 and 269 of the Property Law Act, which provide protection for lessees from being sued. Specifically, the plaintiff had insurance over the warehouse, so the defendant could not be required to cover the costs of the damage. The plaintiff submitted that it was making claims for damage that occurred outside its property, and for the costs of cleaning up items of property (assets) that belonged to the defendant. The plaintiff argued that these types of damages were not excluded by the Act. The Court considered case law and evidence relating to the objectives of the Property Law Act. Its findings were that the plaintiff's claims relating to any work done to control the fire should be struck out, as being excluded by the wording of s 269. The claims for damage to neighbouring properties were also struck out; to allow claims of this type would promote the type of uncertainty that the Property Law Act was intended to prevent. However, it was not clear whether or not the defendant's assets were covered by the insurance policy. It was not appropriate to determine this issue in a strike-out application. The Court declined to strike it out, and ordered a case-management conference to progress the matter to a hearing. Judgment Date: 22 December 2021.

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