Council loses latest round in Whangārei leaky building case

Olivia Lee's leaky home in Ruakaka has been the subject of a protracted legal battle that went all the way to the Supreme Court. Photo/John Stone

The Whangārei District Council will not get a financial contribution from a cladding company after losing the latest round in a leaky building case in court.

Ruakākā homeowner Olivia Waiyee Lee's protracted legal battle against WDC started in 2008 and included an adjudication under the Construction Contracts Act, an arbitration, and an attempted proceeding in the Weathertight Homes Tribunal.

Proceedings went all the way to the Supreme Court which, in late 2016, allowed Lee to take her leaky building case to the High Court.

The Supreme Court ordered WDC to pay her $25,000 in costs plus disbursements.

Lee became aware in early 2008 that her house, built on Sandford Rd in Ruakākā, had defects.

WDC issued a building consent and made inspections during construction but did not issue a code compliance certificate.

CCS Manufacturing and Installations made and installed aluminium cladding but was not responsible for pre-cladding work. CCS successfully sued Lee in the District Court to recoup its outstanding balance of $53,975.

Both the District Court and the High Court ruled there was no breach of duty of care by CCS which required re-cladding.

In a separate proceeding in the High Court at Whangārei, WDC sought a contribution from CCS as a party that allegedly committed a civil wrong.

WDC argued it was in an invidious position of secondary liability, being sued for defects that were allegedly caused by CCS.

CCS applied to have WDC's claim struck out, claiming the territorial authority could not claim contribution because the cladding company was found not liable in the leaky building case.

Associate Judge Roger Bell agreed with CCS. However, he said a finding of non-liability in favour of CCS did not by itself mean questions between Lee and WDC have been determined.

"A trial judge may be able to determine whether Ms Lee is abusively trying to litigate against the council matters on which she has already failed against CCS where there is an overlap of issues," Associate Judge Bell said.

Lee's Supreme Court victory has set a precedent relating to the statutory timeframe in which legal proceedings against parties for alleged negligence over construction and inspections under the relevant laws can be filed.

It allowed Lee to take her leaky building case to the High Court, with the case yet to be heard.