Potential leaky homes class action loses bid to protect latecomers to lawsuit

A lawsuit against building products maker James Hardie Industries has lost its bid to let potential plaintiffs join after a December 31 cut-off date, as the law firm involved awaits a ruling on whether it can proceed as a class action.

In the High Court in Wellington last week, Justice Susan Thomas declined law firm Parker & Associates' application to prevent members in the action being ruled out of time if the class suit isn't granted when it's heard next year. Parker & Associates lost its bid for members in the class suit to be allowed to file individual claims if the representative action isn't approved.

"The position of the consenting persons depends upon the outcome of the application and the reasons for that outcome," the judgment said. "To make the orders, I would have to be satisfied that the statements of claim contain the particulars of each potential class member's claim, or at least, each consenting person's claim. I do not have the information necessary to reach that conclusion."

The plaintiffs – Tracey Cridge, Mark Unwin, Scott Woodhead, and Katrina Fowler – will appeal the ruling, and lawyer Dan Parker is urging people to sign up to the class suit to allow their individual claims to be filed before the courts close on December 23.

They allege James Hardie was negligent in its design, manufacture and supply of the Harditex cladding system, claims the company has vowed to "vigorously defend". About 490 people have registered interest in joining the claim, and 40 others have formally signed up to it.

"The recent judgment does not affect the application for directions to proceed as a class action, which will be argued next year," Mr Parker said in a statement. "In light of the recent High Court decision, we believe it is prudent for people who want to join the cladding action against James Hardie to contact us urgently so that individual claims can be filed before the court office closes."

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.