Auckland Council, James Hardie appeal ruling on leaky building claim made beyond 10-year limit
By Sophie Boot
Feb. 9 (BusinessDesk) - Auckland Council and James Hardie New Zealand have argued in the Court of Appeal today against a
High Court ruling that apartment owners could join a leaky building lawsuit after the expiry of the 10-year limit on
claims by piggybacking on claimants within the same complex who had met the deadline.
On Sept. 1 last year, Justice Patrick Keane ruled 15 unit owners from Oteha Valley Estate, an 18-unit residential
complex at John Jennings Drive, Albany, were able to pursue a multi-unit complex claim by joining claims made by two
unit owners within the 10-year limit of the building being completed. The complex suffered water damage estimated to
cost $2.84 million to repair.
The code compliance certificate for the complex was issued on May 3, 2000, but the multi-unit complex claim was made on
on Nov. 9, 2012. A further complication was that the two unit owners who claimed within the 10 year period withdrew
their claims on the advice of the Ministry of Business, Innovation and Employment, to join the multi-unit complex claim.
Justice Keane had ruled that the date the earlier of the two individual claims was brought should be considered the date
the multi-unit complex claim was brought. He said the wording of the Weathertight Homes Resolution Services Act 2006
deemed the new, multi-unit complex claim to have been brought on the date on which the earlier withdrawn, individual
claim was commenced.
Appealing that decision today, Auckland Council counsel Stephen Price said the wording of section 37 of the legislation
showed any claim must have been brought by the 10th anniversary of the code compliance certificate being issued, and
"nothing in other sections can be read as damaging that."
Price said the Weathertight Homes Act was "not about granting paramouncy of money recovery," rather it was about making
the claims process efficient.
Tim Rainey, counsel for the body corporate, said if an existing individual claimant joined a new claim, the filing date
for the existing claim applied to the new claim.
Justice Ellen France, who is president of the Court of Appeal, asked Price whether the end result of his argument was
that some parts of the complex would be repaired using money from individual claims, and the balance not.
Price said there would be some owners who would be able to recover money, and some who would not, because those owners
did not bring a claim within their time limit.
Justice France also asked whether the two claimants who had withdrawn their claims to join the multi-unit claim, on the
advice of the chief executive of the MBIE, would be able to continue with those individual claims if it was ruled that
the multi-unit claim was not able to be pursued. Price said he was unsure, and said he would consult with James Hardie
New Zealand.
Justices France, Lynton Stevens, and Helen Winkelmann reserved their decision.
(BusinessDesk)