Leaks body failed couple, says judge

Joseph and Margaret Chee at home. Photo / Natalie Slade

A High Court judge has strongly criticised the Government's leaky home adjudication service for mistakes which may have cost an Auckland family up to $300,000.

Justice Edwin Wylie said the Weathertight Homes Tribunal had failed leaky home owners Joseph and Margaret Chee through a series of legal errors and breaches of natural justice.

The judge ordered the tribunal to hear the case again, saying adjudicator Christopher Ruthe had:

* Wrongly allowed the introduction of crucial evidence after the hearing finished.

* Failed to consider possible liability by the builder and the directors of companies involved in construction.

* Incorrectly awarded only $141,800 for targeted repairs when expert evidence suggested the house needed a full reclad.

Mr and Mrs Chee bought the new two-storey home in Bucklands Beach Rd for $387,500 in November 2001, a month after emigrating to New Zealand.

They discovered the house leaked two years later and in 2007 filed a claim with the Government's Weathertight Homes Resolution Service, which claims to offer a fast, cheap and independent alternative to the courts.

Mr Chee chose to represent himself, rather than use a lawyer.

The week before the hearing began, Mr Chee asked the tribunal to summons Manukau City Council officers involved in the building consent, inspections and code compliance certificate for the house.

Mr Ruthe refused, saying his questions were really legal submissions which would bring no benefit to his case.

At the same time a tribunal staff member wrote to the council's lawyer, David Heaney, asking whether the council would issue a building consent for targeted repairs.

Mr Chee said this made him suspect Mr Ruthe had already made up his mind before the hearing had even started.

In his judgment, Justice Wylie said Mr Ruthe's refusal to allow Mr Chee to cross-examine council witnesses was wrong and his advice was "somewhat paternalistic and premature".

The judge said Mr Ruthe also failed to give Mr Chee enough time at the hearing to argue his case for a full reclad costing $443,115 - about $300,000 more than the compensation granted.

When the hearing finished Mr Ruthe invited the parties to reconsider their expert evidence in the light of evidence presented by Brian Taylor, the builder.

He particularly asked if the council's expert Geoff Bayley would like to reconsider his view that a complete reclad was necessary.

Mr Bayley responded that if the builder's evidence was correct, he would support the cheaper targeted repairs.

Justice Wylie said Mr Ruthe's decision to admit further evidence after the hearing, without giving Mr Chee the chance to respond, breached principles of natural justice.

Justice Wylie said he could not understand how Mr Ruthe decided to award $141,800, as there was no analysis to support the figure.

"In many crucial areas the tribunal has failed to give reasons for its decision."

Top leaky building lawyer Paul Grimshaw said Mr Chee was right to feel aggrieved at the way Mr Ruthe wrote to the council's lawyer before the hearing to ask whether it would support targeted repairs.

"You would never have a High Court judge write directly to one of the parties to suggest a repair option."

Mr Grimshaw said the "incredible decision" showed leaky home owners were better off bypassing the tribunal and taking their case to court. Cases might take longer but at least home owners usually got the right decision.

Last November the High Court doubled a compensation payout by the tribunal from $173,801 to $346,002 for leaky home owners Paul and Wilna White of Whangaparaoa.

The tribunal's website lists 24 decisions last year, excluding procedural orders.

Eight are under appeal, four other appeals succeeded and two were unsuccessful.