Sylvia Park: Case about defects, not leaks

Kiwi Property has announced a one-for-nine entitlement offer to raise $151.9 million to help fund the Sylvia Park expansion and repay bank debt.

A dispute over building defects at one of Auckland's biggest shopping malls was on the electronic online High Court list last Thursday.

But the case for discovery in Courtroom Five did not appear on the daily list at the court in Auckland that morning and never went ahead.

Sylvia Park Business Centre is suing mall builders Brookfield Multiplex Construction (NZ), Brookfield Australia Investment and Downer NZ.

More details about the case involving the $540 million mall owned by Kiwi Income Property Trust recently emerged about issues in dispute. Last month, Justice John Faire ruled in a documents application from Fourth Estate for documents, saying the mall's owner said the matter was not a leaky building issue.

Sylvia Park fought document release, saying it was "not a leaky building case. In fact, it is a building defects case. The focus is on materials, workmanship and fitness for purpose of a mastic-asphalt carpark and the workmanship and performance of the membrane, roofs and gutters", the judge said, quoting the plaintiff.

"Because it is not a leaky building case, any public interest in leaky building cases is not a justification for access in this case," he said, quoting Sylvia Park.

Then he referred to this journalist's article, headlined Sylvia Park court action launched. "Although there was an article in the New Zealand Herald there has, in fact, been no media comment about the nature of the defects at the complex, nor about the current parties. The application has been made at the pre-trial stage. The authorities, it is submitted, are against disclosure at this stage because preparation of a case is enhanced without the scrutiny of outside parties. This can affect proper discovery and disclosure of commercial sensitive information." He also cited other reasons for declining the application.

Settlement would be discouraged; and the airing of contested but untested facts leads to division between the parties, a further disincentive to settlement. The pleadings also contained commercially sensitive private and confidential information, the judge said.