Under section 14 of the Weathertight Homes Resolution Services Act 2006 (“the WHRS Act) residential home owners making a claim are only eligible for mediation or adjudication services if their home was “built within the period of 10 years immediately before the day on which the claim is brought”.
Many cases under the WHSR Act have turned on the definition of “built”, with previous decisions finding that “built” meant that the house was built to a standard such that a code compliance certificate could have been issued, as opposed to the date the certificate was actually issued.
That approach often led to local Council’s escaping liability and was also inconsistent with the approach the Court took in regard to claims under the Building Act 2004, where they held that the ten year limitation period ran from the date the code compliance certificate was actually issued.
However in the recent decision of Osborne v Auckland City Council [2014] NZSC 67 the Supreme Court has rejected the approach previously taken under the WHRS Act and extended the time available to residential home owners under section 14, to ten years from the date on which the code compliance certificate was issued. The Supreme Court’s decision brings consistency in how the Court and claim’s assessors should interpret the definition of “built”, regardless of the Act the claim is being made under.
The Supreme Court went on to confirm that their decision does not preclude defendants raising limitation defences, for example where a claim is brought just within the ten years from date of code of compliance was issued, the Council will not have a limitation defence but a contractor who completed work well in advance of the date of issue of the certificate may well have a limitation defence open to them. Therefore builders and contractors need not be concerned that this decision changes their liability periods.
We have experience in weathertight home claims and litigation under the Building Act 2004 and can assist and advise you in relation to any potential claims.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co who normally advises you, or alternatively contact:
Kirsten Maclean
(03) 477 8870 or (09) 379 0055
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.