Court protection sought for latecomers to James Hardie leaky homes class action

A law firm that has signed up more than 500 potential claimants for a lawsuit against building cladding maker James Hardie Industries has asked the High Court for a ruling on their status if denied the opportunity to take New Zealand's first leaky homes class action.

Lawyer Dan Parker told Justice Susan Thomas in the High Court in Wellington that he wants a ruling that would protect potential plaintiffs who would become ineligible after the December 31 cut-off date because, from then, a bar is in effect on claims based on acts or omissions that occurred more than 15 years ago. Parker argued that potential plaintiffs shouldn't be disqualified by the limitation because the clock effectively stopped when his existing clients, Tracey Cridge, Mark Unwin and Scott Woodhead, filed suit this year.

Those plaintiffs and Katrina Fowler allege James Hardie was negligent in its design, manufacture and supply of the Harditex cladding system, claims that the company has vowed to "vigorously defend."

Justice Thomas ruled that only the particulars, facts and result of the application could be reported because the lawyer for James Hardie's Studorp subsidiary, Jack Hodder QC, opposed the in-chambers hearing being made public.

Mr Hodder told the court the Limitation Act reflected important policy provisions that protect both claimants and defendants and provides certainty about a cut-off date. For example, a limitation also prevented a defendant pursuing third parties from that date, such as local authorities that may have signed off on building work.

The lawsuit is one of two seeking class action status over leaky homes this year after Adina Thorn Lawyers launched one against plaster cladding manufacturers, and follows a Court of Appeal ruling that a Ministry of Education claim against Carter Holt Harvey isn't subject to a 10-year limitation under the Building Act.

New Zealand has yet to develop legislation for class actions, although a bill has been drafted, with representative suits evolving through court rules rather than legislation and leaving a lack of clarity over some of the procedural rules, which can lead to protracted litigation.