KEY POINTS:
We are very pleased for Maria Dicks that Justice Baragwanath has set down such a comprehensive ruling. We hope for her sake that the Waitakere City Council will not continue to spend ratepayers money defending their negligence by appealing the decision.
And we hope they pay her what
is rightfully hers, allowing her to get on with repairing her defective home and restoring some normality and security in her life.
We applaud the efforts of Grimshaw & Co in representing Ms Dicks and achieving a significant result for the benefit of all leaky-home owners. This judgment, if it stands, will assist many leaky-home owners in their pursuit of compensation, either through the courts, or the new Weathertight Tribunal as it sets strong precedents in this area.
The judgment has quashed what we believe are the spurious arguments that councils throughout the country have used in relation to their duty to home owners and their obligation to make competent inspections during construction.
It will certainly benefit those going through the Weathertight Homes Resolution Service and the Weathertight Tribunal so far as it will enable them to rest on this judgment as a precedent.
And it may compel councils and other respondent parties to make more meaningful attempts to settle claims early, relieving leaky-home owners from having to endure litigation.
We have long argued that common practice does not a standard make. And yet the councils have continued to mask their failure to properly understand and execute their duties and obligations under the 1991 Building Act - and amended versions - by conveniently arguing that any individual council did what every other council was doing.
It is the systemic failures of the councils' processes that have given rise to defective dwellings being built.
The failure of senior building officials to understand their duties and obligations under the Building Act has led to the standards not being properly articulated and imposed on the design and building industry as a whole.
We think there has been a serious lack of quality processes within the councils and that - combined with the poor levels of experience, training and proper auditing - has contributed to the dire consequences experienced by thousands of home owners - including, sadly, some that don't yet realise it.
The councils are responsible for several defensive barriers preventing the failure of these homes.
They include issuing building consents, the conduct of building inspections, and issuing code compliance certificates.
These are the three areas where they have the power and the duty to ensure that the homes are going to meet the performance and durability standards of the code.
For this reason we believe that the councils should bear more than the 20 per cent liability as apportioned in precedent, notwithstanding the fact that the councils are generally left to pay a significantly higher amount or all of the damages as a consequence of being found joint and severally liable (law of torts).
The primary barrier is the building consent. If that is flawed then, in logic, everything that follows is flawed.
Most if not all of the failed homes are characterised by plans submitted for building consent lacking the necessary level of detail and specifications such that a positive impression is gained by the council as to how the construction will meet the requirements of the building code.
There has been this grey area between consent drawings and construction drawings and in our view there should be no difference.
The result is that most developers/owners just did not bother with the expense of getting construction drawings and left the builder to improvise.
The drawings then give no guidance to the building inspector as to how the details were to be constructed and the chain of failures is perpetuated.
The builder in this case has been found to have been personally liable (negligent) and has not been able to hide behind his limited-liability company, which is in liquidation.
This is another very significant aspect of the judgment which will have very wide implications in the building industry.
We have some sympathy with the builder, given what we say about the council's failures in regard to the issuing of the building consent based on flawed plans (he has been compelled to build in accordance with those plans and if they lacked detail was in a difficult position).
This has now dealt with the more unscrupulous builders who are serial liquidators of their companies - using shelf companies for each project.
The judgment notes that there are 40,000 leaky homes out there, fewer than 4000 of them registered with the Weathertight Homes service.
It is disconcerting that there are so many leaky homes and that people are living in them and perhaps oblivious (or in denial) of the fact that their home is at risk.
More worrying is the number of these homes that are being sold. Even those who have done the right thing in terms of getting a pre-purchase inspection are sometimes caught out by the poor standards set by some pre-purchase inspection companies.
Then there are those who are not exercising due caution in buying any home by not getting an inspection done at all.
We urge homeowners to have their homes properly maintained and surveyed to ensure that there are no major issues.
Maintenance should be ongoing, but if there is any doubt about the weathertightness risks and the home is less than 10 years old they need to get it checked and file a claim with the WHRS as soon as possible if moisture is found to have penetrated the building.
* John Gray is chairman of the Leaky Homes Action Group, representing about 2000 owners.
