Auckland tourist attraction Kelly Tarlton's Underwater World is suing contractors for almost $3 million for damage caused by a sewage spill resulting from a power cut in June 2006.
The attraction occupies a number of old sewage holding tanks on Auckland's Tamaki Drive, but one is still used as an overflow tank for the sewage system and also houses ducting, providing ventilation to Kelly Tarlton's.
Modifications had been made to the ducting the previous year, including installing new PVC piping.
When the pump station failed at nearby Orakei Domain, wastewater flowed into the tank.
Kelly Tarlton's owners at the time, Tourism Holdings Ltd, said that the pipe failed in the power cut and broke free from its connections as the waste water came in.
"Sewage and seawater flowed into Kelly Tarlton's causing extensive property damage and business interruption losses," Associate Judge Roger Bell said in a preliminary ruling in the High Court at Auckland.
"It says these losses amount to $2,927,726 and it claims that sum in damages in this proceeding."
Tourism Holdings are suing mechanical engineers APG Thompson Ltd, pipe installers Air Action Installation Ltd, and Plasfab Installations 1977 Ltd, who supplied the piping.
The duct modifications were carried out towards the end of a two-stage redevelopment of Kelly Tarlton's.
Initially, the lead consultants, Thorburn Consultants (NZ) Ltd, whose director Craig Thorburn, a marine biologist, once worked as a curator at Kelly Tarlton's, was also being sued but that case was dropped.
However, Thorburn Consultants is being cross-sued by Air Action Installation.
Tourism Holdings said the ducting was deficient in various ways.
It claimed that "the new ventilation pipe and supports were not designed adequately to withstand the lateral and vertical forces to which the pipe would have been subjected in the chamber when water levels were high or in surging water conditions, and to withstand damage from floating debris."
Air Action Installation claimed Thorburn Consultants knew the chamber was a sewage overflow tank, but never told it.
Air Action Installation identified a problem with ventilation in the toilet blocks during an inspection in January 2005.
Both companies and a number of other parties met on site to discuss the problem.
Thorburn Consultants asked Kelly Tarlton's if it wanted it to project manage the ventilation issue, but Kelly Tarlton's declined, saying it would deal directly with the mechanical engineer and Air Action Installation.
Associate Judge Bell said Thorburn Consultants was on "safe ground" after Kelly Tarlton's told it that it would not be involved.
However, the judge said the question was whether Thorburn Consultants was under a duty to tell Air Action Installation that the chamber was still used as a sewage overflow tank.
There were arguments both ways.
He said that Thorburn Consultants did not say in its affidavit that it told Air Action that the tank was used for sewage overflow and that the ventilation pipe could be submerged in effluent.
Thornburn Consultants maintained that Air Action Installation would still have adopted the same design, even if it had known that the tank was to be used as a sewage overflow chamber.
The judge said he could not say conclusively at this stage that Thorburn Consultants had no liability.
He dismissed Thorburn Consultants' application for summary judgment against Air Action Installation.
The case is due back in court in February.
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