$200m leaky building lawsuit: Victims win latest court discovery round against James Hardie

Auckland High Court where discovery was granted. Photo / Kenny Rodger

Leaky building litigants claiming more than $200 million have succeeded in their latest round against building cladding manufacturer and supplier James Hardie over its Harditex, Monotek and Titan products.

Justice Christian Whata delivered a decision from the High Court at Auckland this month which was a victory for the owners of more than 1000 homes, commercial buildings and retirement village units clad in what they claim are defective James Hardie products.

The judge said the plaintiffs were 1236 residential homes, five commercial buildings and five retirement villages.

Those villages are all owned by Metlifecare which has recorded a balance sheet leaky building repair liability of more than $40m.

In the latest discovery application heard on June 27, the judge ruled on July 4 that James Hardie must provide certain documents requested by the claimants

Adina Thorn, one of the lawyers acting for some of the plaintiffs in the latest case, said: "We succeeded in our application for certain discovery documents from the defendants. The estimated quantum is in excess of $200m and is based on losses - actual and estimated - and damages."

As well as Thorn's plaintiffs, a separate group of plaintiffs won the latest round: Waitakere Group Ltd and others. That second group are separately represented and sought modified orders for discovery.

But Justice Whata said: "The central issues remain the same for both proceedings for the purpose of discovery."

At issue in the latest decision was the scope of discovery and whether James Hardie should have to hand over documents about customer complaints, records of site visits, advice to customers, insurance documents, licensing agreements and agency, representation, joint venture or similar arrangements.

The judge ruled James Hardie must hand over those documents although date ranges on some of those documents will need to be agreed on.

The broader case revolves around who is responsible for the design, manufacture and sale of the James Hardie products and related product information, whether the James Hardie products are defective, whether the defendants knew or ought to have known about any defects and whether the defendants breached any common law or statutory duties, the judge said.

The defendants told the court that insurance documents were irrelevant because no insurance issue arises and it was well established that documents relating to professional indemnity or public liability issues were normally irrelevant.

Thorn said afterwards that the action began in 2015 and she expects further hearings this year.