Leaky school fight goes to Supreme Court

The country's highest court will make a decision on cladding case involving Carter Holt Harvey. Photo / NZME

The Supreme Court will decide whether or not parts of the Ministry of Education's lawsuit against Carter Holt Harvey can go ahead.

The case involves a large number of school buildings throughout the country clad in Carter Holt's Shadowclad.

The litigation advances five different sets of allegations, the first being that Carter Holt was negligent in designing, manufacturing, importing and supplying the allegedly defective cladding.

It is also claimed Carter Holt negligently failed to warn the ministry about the cladding.

It is also alleged Carter Holt owed a duty of care to not make "false, misleading or negligent misstatements" about the cladding and that Carter Holt breached guarantees in the Consumer Guarantees Act and breached the Fair Trading Act.

Carter Holt says that the construction of buildings with its product was the result of an extensive chain of contracts, the existence of which precludes the imposition of liability or any claim that a duty of care is owed to the ministry.

The company applied to the High Court to have all but the Fair Trading Act claim thrown out but was turned down last year. A challenge to that decision in the Court of Appeal was partly successful in July, when Justices Tony Randerson, Lynton Stevens and Mark Cooper agreed to strike out the negligent misstatement claim from the ministry's case.

"We are not satisfied that the claim as pleaded could succeed," they said at the time.

The judges dismissed the appeal regarding the other parts of the case and upheld the High Court's decision that the case was not brought out of time.

Both sides sought leave to appealed to the Supreme Court, which this afternoon agreed to take the case.

The country's highest judicial body will decide on whether the Court of Appeal was right to conclude that the claims for negligence are arguable, that the claims for negligent misstatement