Demolition work when it was under way in 2020 on the former BNZ Harbour Quays building in Wellington. Photo / Mark Mitchell
Demolition work when it was under way in 2020 on the former BNZ Harbour Quays building in Wellington. Photo / Mark Mitchell
Asia Pacific’s independent advisory, design and engineering consultancy Beca has failed in a Supreme Court case against Wellington City Council over the now-demolished BNZ office tower which was once on the capital’s waterfront.
The Supreme Court has dismissed Beca’s appeal in the legal dispute between two parties overthe building which was on Waterloo Quay but was hit by the Kaikōura earthquake last decade.
The ruling follows High Court and Court of Appeal decisions which all found in favour of the council and dismissed claims from Beca Carter Hollings & Ferner over the former BNZ Harbour Quays.
The Supreme Court decision issued today gave the background to a series of legal proceedings since 2019.
Matters trace back to late last decade with the BNZ suing the council, claiming negligence for granting consent, inspecting and then issuing a code compliance certificate for the block built on land owned by CentrePort.
That building rose between 2006 and 2010 but when the November 2016 Kaikōura earthquake struck, the block was irreparably damaged.
The bank was unable to return to the building which it leased from CentrePort.
The building was therefore treated as uneconomic to repair and it was subsequently demolished.
Back in 2020, when Wellington's earthquake-struck BNZ Harbour Quays was being demolished. Photo / Mark Mitchell
So in 2019, the BNZ sued the council for negligence, citing problems with the building’s substructure and superstructure for which it blamed the authority. The plaintiffs were the Bank of New Zealand and its subsidiary operating company BNZ Branch Properties.
Damages of around $101 million were sought for various losses including business interruption from the damage from the quakes. The council denied liability.
But as a result of being sued, the council in turn filed a statement of claim against Beca, saying it had responsibility for engineering design and construction.
“The council claims contribution under s 17(1)(c) of the Law Reform Act 1936 and in equity from Beca as a joint tortfeasor with the council if, contrary to the council’s denial, it is found liable to BNZ. The council also claims in tort for negligence, relating broadly to the preparation of design documents, and for negligent misstatement, again, broadly, based on the misrepresentation of design documents knowing the council would rely on them when issuing building consents and code compliance certificates,” today’s decision summarised.
Beca accepted it was engaged by CentrePort to do design work and monitor construction.
BNZ Place, the bank's newly completed building in central Wellington, photographed this year. Staff left the BNZ Harbour Quays when it suffered damage due to the 2016 earthquake. Photo / Mark Mitchell
But it denied any liability saying there had been no breach of its duty of care to the BNZ so it was not a joint tortfeasor with the council, the Supreme Court decision said.
The council as the defendant in the BNZ’s claim had brought Beca in as a contributor. Beca protested this on the basis that, irrespective of the position of the council, their involvement in the matter had ceased over 10 years ago, and the contribution claim was therefore prevented by the long-stop provision.
Beca also pleaded the protection of the 10-year longstop in the Building Act 2004. Beca says that the claim by the council is a “civil proceeding relating to building work”, based on Beca’s allegedly negligent acts in issuing a producer statement for the substructure of the building on February 19, 2007, along with a producer statement a year later.
The council says it relied on these producer statements in granting the initial consents for the superstructure, and in issuing code compliance certificates in respect of the consents for both the substructure and superstructure.
The entrance area of the newly finished BNZ building in central Wellington, photographed this year. Photo / Mark Mitchell
Accordingly, when the third-party proceeding was commenced by the council in 2019, Beca’s case is that the council’s proceeding was out of time because of the 10-year longstop.
Beca applied for strike-out and for summary judgment in relation to the council’s claim based on this limitation defence.
Both the High Court and Court of Appeal ruled in the council’s favour and dismissed Beca’s claims for strikeout and summary judgment.
Dissatisfied with those rulings, Beca then took matters to the Supreme Court which heard the case in October last year.
It is that decision which was issued today.
But once again, Beca has failed.
The Supreme Court was clear in its findings.
BNZ Harbour Quays before the 2016 earthquake. The building has been demolished and is now at the centre of ligitation. Photo / Mark Mitchell
“We are accordingly asked to decide whether the Court of Appeal was correct to conclude that the contribution claim was not caught by the longstop provision under s 393(2) of the Building Act 2004, but, rather, governed by the applicable provisions in the limitation legislation,” today’s decision said.
Five Supreme Court justices ruled on the matter: Dame Susan Glazebrook, Sir Mark O’Regan, Dame Ellen France, Sir Joe Williams and Sir Stephen Kós.
Andrea Rickard, Beca managing director for New Zealand, said today the business had received the decision “and we will continue to defend the claim. Given the matter remains before the court, we will not be commenting further”.
The article said it had been eight years since the Kaikōura earthquake damaged BNZ’s nearly eight-year-old building beyond repair, and finally, the bank’s Wellington staff are coming together under one roof.
When the walls came down: BNZ Harbour Quays being demolished in 2020. Photo / Mark Mitchell
“BNZ Place” was opened by Finance Minister Nicola Willis.
The highly profitable Australian-owned bank has spent more than $50 million fitting out the building, which it’s leasing from developer, Newcrest LP.
About 1500 of BNZ’s 1800 Wellington staff can work from the 12-storey building at 1 Whitmore St, that article said.
Anne Gibson has been the Herald’s property editor for 24 years, written books and covered property extensively here and overseas.
