Anne Gibson

Property editor of the NZ Herald

Architect firm's leaky building defence not watertight: judge

Anita Finnigan's leaky house was built between 2004 and 2006. Photo / APN
Anita Finnigan's leaky house was built between 2004 and 2006. Photo / APN

A High Court judge found a leading firm of architects does not have a "watertight" defence in a leaky building case over a Waiheke Island house.

Associate Judge Roger Bell ruled against award-winning Fearon Hay Architects of Auckland, which charged $115,000 to design the house at 38 View Rd on the island.

"The cost of the repairs, including GST, is said to come to $651,066," the judge said. "The plaintiffs [have] sued for the recovery of these repair costs plus general damages."

He allowed a case against those architects and the Auckland Council to go ahead.

Anita Maria Finnigan, Tinos Trustee and Carytids Trustee are suing the council and architect for their respective roles in the house which the judge said had water ingress problems.

"The claim against the architect is for negligence in its design work. Specifically, it is alleged that there was inadequate detail," the judge said.

"There was insufficient detail for the council to assess the application for building consent adequately and for the builder to put up a house that was free of defects, weathertight and which met reasonable standards of construction," he said.

"The details were so lacking that the building did not comply with the Building Code and was not weathertight and suitable for residential use."

The house was built between 2004 and 2006. But in 2005, Fearon Hay sued Finnigan in the district court for outstanding fees.

"It appears that while Ms Finnigan had paid the initial agreed fee, the architect claimed for extras for additional work," the judge said.

But Finnigan contended that some of the extra work was necessary redesign work to repair deficiencies in the original work.

The firm of architects applied for summary judgment and to have the case struck out "on the grounds that it has already entered into an agreement with the plaintiffs in full and final settlement of their claim", the judge said.

But Finnigan opposed having Fearon Hay removed from the case.

The architect also relied on an agreement with her that said she and the trustees were barred from suing them over alleged defects in design leading to the water problems, the judge noted.

"I cannot find that the architect has a watertight defence," he said, ruling that the weathertight claims were separate to litigation over payment and Finnigan has "an arguable case" against the architect.

He therefore dismissed the architect's attempt to be struck out of the case which could now proceed to a full hearing.

"This was an interlocutory application which had no bearing on the merits of the substantive proceeding," said lawyer Jess Keating of Kennedys, who acted for the architect.

Read the court judgement here:


- NZ Herald

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