The High Court has refused Deane Roofing & Cladding Ltd’s application to strike out a claim against it over alleged fire safety defects at student accommodation converted from a former hotel. The court said the owners had shown a credible basis for the claim pending their review of discovered documents. It did not decide whether Deane Roofing was liable.
The plaintiffs, HGREIT II Montrose Opco LLC and HGREIT II Montrose LLC, allege that construction works were negligent and breached contract, including because fire safety measures did not meet regulatory requirements. They say significant remediation works were needed and seek to recover the costs. Their specific allegation against Deane Roofing is that its roofing works failed to ensure non-combustible roofing extended above fire compartment walls through to the roof finish.
Deane Roofing applied to strike out the proceedings against it as an abuse of process. It relied on affidavit evidence that it installed the external roof and had no responsibility for defective works or for integrating that roof with combustible works underneath. It argued that the plaintiffs had not answered this evidence and had no credible basis for their claim.
Justice Garrett Simons said the application could succeed only if the claim was shown to be bound to fail; a weak claim or an early resolution of disputed facts would not suffice. The plaintiffs acquired the property years after the construction project and said they did not know how responsibilities were divided between the main contractor and subcontractors. Discovery documents, delivered in mid-December 2023, were being reviewed to clarify the scope of work. The plaintiffs’ counsel said the review relevant to Deane Roofing should take six weeks.
The court noted that the main contractor’s defence described Deane Roofing’s package as including cladding and roofing works and demolition or alteration to sub and super structures. The main contractor had not served a notice of indemnity and contribution on Deane Roofing or alleged wrongdoing against it. The court nevertheless considered the difference in the parties’ descriptions of the work relevant to the plaintiffs’ difficulty in particularising their claims while the document review continued.
The judge concluded that the strike-out threshold had not been met and refused the application. He said the claim’s nature and extent should be clarified when discovery review was complete: the plaintiffs should provide further particulars if they pursue it, or notify Deane Roofing promptly if they do not.
The court did not make a final costs order. Justice Simons expressed a provisional view that the motion’s costs should be costs in the cause and said he would hear further submissions before deciding. The proceedings were listed for final orders on 7 March 2024.