Weathertight e-news
Issue 2 – March 2009
In this issue we cover:
Current figures – February 2009
As at 1 March 2009 the Department has received 5687 claims lodged for 6,403 properties and completed assessments for 6238 properties. Visit this page to see data for different regions.
Under the WHRS Act 2006 we accept applications for multi-unit properties as single claims.
Total claims
 |
 1,095 resolved claims (19%)
 2,491 closed claims (44%)1
 2,101 active claims (37%) |
Active claims
 |
189 claims in a process of assessing eligibility (9%)
 338 claims awaiting claimant decision (16%)2
 1,574 claims pursuing resolution (75%) |
Claims pursuing resolution
 |
661 claims with claimant pursuing repairs (42%)
540 claims in alternative jurisdictions (34%)
 60 claims in the WHRS Act 2002 resolution process (4%)
313 claims in the WHRS Act 2006 resolution process (20%) |
1. Claims can be closed for a number of reasons including the following: claim discontinued by a claimant; claim being ineligible; property changed ownership; claim withdrawn under the WHRS 2006 Act so that the claimant may join a class action; claim not progressing; claim transferred to another jurisdiction by the Weathertight Homes Tribunal (WHT) or claim terminated by the WHT.
2. Claimants can decide between 'eligibility' or 'full' assessment of the property. After the claim is decided eligible, they can decide to repair first or to resolve the claim and then proceed with repairs.
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Understanding the 10-year limitation rule
For many properties, the 10-year time limit for making a weathertight claim is just around the corner. If you discover leaks, or suspect you may live in or own a leaky home, and the building or alteration is still within the 10-year period, you should take immediate action to make a claim.
Your home may be at risk of leaking if certain materials were used in its construction or has certain characteristics, including:
- monolithic cladding
- recessed windows
- flat roofs with narrow or no eaves
- external features such as solid balustrades or a complex roof shape
- balconies that jut out from the walls.
The 10-year eligibility period for bringing a claim is measured against the time that has elapsed between:
- the date the dwelling was built or altered, and
- the date the application to bring a claim was formally received by the Department.
Exactly when a dwelling was ’built‘ will usually be the date of the last substantive building work, connection of utilities such as power or water, or council inspection. Generally, the latest a dwelling could be said to be 'built' is when it is ready for occupation, or when a Code Compliance Certificate is issued soon after the building work is completed.
Even where a claim is eligible under the Weathertight Homes Resolution Services Act 2006 (WHRS Act), respondents could still raise the defence that a claim is time barred under the Limitation Act 1950 or Building Act 2004.
These two Acts provide limitation periods for civil proceedings related to building work. Proceedings must be brought within six years of when defects or damage were discovered or were reasonably discoverable and, ultimately, within 10 years of the relevant building work.
It is the limitation period in those other Acts that might provide a respondent with a complete defence to a claim, even though the property is eligible as a ‘leaky building’ claim under the Weathertight Homes Resolution Services Act 2006.
Where the claim arises from alterations, the completion date is the date that the construction aspects of the alterations were completed, or when a Code Compliance Certificate was issued soon after the building work is completed. For example, if the alterations involved adding more rooms or levels to the dwelling, for example, then the latest date for completion is the date that the additional rooms or levels were able to be used or occupied.
Whether any building work is an ‘alteration’ under the WHRS Act is a matter of fact. If building work to fix or repair something that is damaged or faulty involves modifying the original design, construction or materials, then it could be considered an ‘alteration’. The scale of building work and degree of material change may be indicative factors.
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When was the work ‘completed’?
If you are making a weathertight claim, getting the building or alteration work completion date as accurate as possible is important. Bringing a claim that is 'out of time' may provide other parties with grounds for having the claim against them struck out.
One particular form of evidence alone may not necessarily be conclusive proof of when the dwelling was built or altered. For example, a Code Compliance Certificate may be issued some time after a dwelling is built. However, a range of documents and other factors and information may still be necessary.
Evidence you may need to collate includes:
- building consents – dates of application and issue
- building inspections – dates, purposes and notations on inspection records
- evidence of when services such as water and power were connected and service charges started to accrue
- payments to tradespeople and suppliers – records of date of supply and nature of the goods and services
- contractor certificates and records – certificates of completion or other building records from contractors (in particular, recording the last substantive building work on the dwelling)
- Code Compliance Certificate – dates of application and issue and notations on applications
- territorial authority rating and capital improvement records
- Land Transfer Office records – when the first sale was made
- actual date of occupation (for purposes as a private residence)
- other photographic evidence
- other corroborating evidence (e.g. neighbour testimony).
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Do I need an assessment?
As a claimant, you decide whether you want a full assessor’s report or an eligibility assessor’s report on your house/multi-unit complex. Your claims advisor will then arrange an independent assessment of the property to establish whether the claim may be eligible for resolution under the WHRS Act.
A full assessor’s report can then be used as evidence to help settle the claim. Further information on the different types of assessment report can be found in the information you received when the Department accepted your claim.
If a weathertight claim is accepted for an assessor’s report, the Department commissions an expert assessor to investigate the house or complex and provide a report . A copy of the report is then sent to the claimant or their representative.
Invasive testing generally forms the basis of the assessor’s report on a WHRS claim. A full assessor’s report usually requires more invasive testing than an eligibility assessor’s report.
This testing allows the assessor to access otherwise inaccessible areas, and drilling or cutting is usually involved. The assessor will make temporary repairs to any areas where invasive testing has been carried out, but you are responsible for making the final repairs.
WHRS claims cannot be processed without your authorisation of this testing. More information about different types of assessment is available in the Department’s ‘Assessment of your house or multi-unit complex’ information sheet.
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Making claims against directors
In some cases a director of a company that carried out building or development work can be sued personally. In general this can be done where the director either:
- personally carried out the work that was either in breach of the contract or was negligent. In other words, the director was the actual builder or plasterer that did the work, or
- personally controlled or directed the work that resulted in the home being leaky.
The most common legal reasons or causes of action for claims available to leaky homeowners are: the tort of negligence, breach of contract, claims under the Fair Trading Act 1986, and Consumer Guarantees Act 1993.
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BIA joined by Council in weathertightness claim
In ‘The Grange’ case, the High Court recently permitted a respondent Council to join the former Building Industry Authority (now the Attorney-General) as a third party.
The key issue here is whether the Council can claim from the Crown any amount for which the Council may be held liable as result of the former BIA giving the Council an earlier 'clean bill of health' report under the Building Act 1991.
The Court held it could not undoubtedly rule out a duty of care on policy grounds. It dismissed the BIA’s application to strike out the Council's third party notice, effectively leaving the matter to be argued at the hearing. The Attorney-General, however, has lodged notice of appeal to the Court of Appeal.
The decision does not have any effect for WHRS claimants or other claimants before the courts when naming parties to claims.
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Costs in WHRS claims
In the ‘Simpson Family Trust’ case, the High Court confirmed the Weathertight Homes Tribunal's award of costs against a claimant, but with some minor changes in scale of legal costs. The claimant had made claims they had difficulty in substantiating in both the Tribunal proceedings and upon appeal to the High Court.
One of the tests for costs under the WHRS Act is that a claim has ‘no substantial merit’.
The Court said this was not a case of wilfully proceeding without any foundation, but rather a failure to recognise the inadequacies in one's own evidence that could have been identified prior to the hearing.
The Court also noted that the fact of a reasonable settlement offer made before the hearing (but declined by the claimant) should also be borne in mind in the circumstances.
The Weathertight Homes Tribunal website
provides Chair's Directions and seminars to assist parties before the Tribunal when making claims and submissions.
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Weathertight Homes Tribunal seminar series
The Weathertight Homes Tribunal is running a series of seminars that explains the tribunal process in detail. The list of seminars is regularly updated in order to meet demand.
Information packs can be sent to you or an appointment can be made for you to meet with a case manager. To find out more about the seminars and dates, visit the Weathertight Homes Tribunal website’s seminar page.
If you are unable to attend a seminar but require further information then please contact the tribunal on 0800 777 757 or email WHTenquiries@justice.govt.nz.
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