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Supreme Court opens up “clumsy” leaky building law

Victoria Young
Tue, 10 Jun 2014

This nation’s highest court has opened the door for hundreds of home owners previously caught out by a ten year time limit to make claims.

The Supreme Court has ruled Auckland couple John and Helen Osbourne’s can take their case the Weathertight Homes Tribunal.

The Osborne’s house was mostly complete by 1996 but the certificates were not issued until early 1997. It started to leak in late 1997 and an assessors report in 2007 had found their home didn’t qualify under the scheme because the ten years had expired.

Under Weathertight Homes Resolution Services Act 2006, home owners can only use the tribunal if they make a claim within ten years of when the home is “built”.

In a decision released today the Supreme Court has expanded this definition to start from when code compliance certificates are issued.

The reason for this, given by Justice William Young for the court was because the issuing of the code compliance certificate is the last activity for the relevant local body or council

The court said using the word “built” in the legislation was clumsy, and must have meant to include certification.

“We construe the expression “it was built” in section 14(a) as a clumsy but understandable attempt at a précis of the language which we have emphasised,” the judgment says. 

It said that the section, which acts as, a ten-year limit was acting as a “trap for laypeople,” as seen in the plight of the Osbournes.

The court also said eligibility under the WeatherTight Homes legislation had to be on the basis of a screening nature. 

“The reasonable possibility that building work (including certifications) occurred within ten years of the request for an assesors report should usually be enough to result in the consultation that the s14(a) criterion is satisfied.”

The Osbournes had already reached a conditional settlement with Auckland Council, but the Supreme Court released its decision as it is of public importance.

The council says its offer to the Osbornes is now void and the claim will go back to the tribunal.

"This is not to say the claim is not capable of settling on different terms at a later date but all the building parties of both the original works and the unconsented repairs will be included in the resolution of the claim," a statement from the council says. The counil says it will not comment further.

Victoria Young
Tue, 10 Jun 2014
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Supreme Court opens up “clumsy” leaky building law