Grimshaw Blog

McNamara v Auckland Council

grants — Wed, 09 May 2012 00:44:25 +0000

On 9 May 2012 the Supreme Court released its much awaited decision in McNamara v Auckland City Council [2012] NZSC 34. The McNamaras bought a leaky home in 2004 for which Approved Building Certifiers Ltd had issued the code compliance certificate in circumstances where it was not authorised/able to do so. ABC went into liquidation and there were not other solvent parties available to pay the costs to fix the leaky home. So, the McNamaras sued the Auckland City Council alleging that it was liable for ABC issuing the code compliance certificate when ABC was not authorised to do so. The Court by a 4 to 1 majority decided that the Council could not be liable. It was entitled to rely on the integrity of the code issued by ABC under s50(1)(a) of the Building Act 1991 and could not be sued by reason of s50(3). This decision severely limits the ability of leaky home owners to sue the Council where inspection/certificati0n was performed by a certifier.

Earthquake insurance

grants — Tue, 08 May 2012 03:11:15 +0000

In Marchand & ors v Jackson & anor [2012] NZHC 944 the High Court discussed the factual circumstances of a claim by homeowner(s) against their insurance broker who failed to place insurance cover for home, contents, and vehicles when told to do so. The failure to place the insurance cover came to light after the earthquake in September 2010. In 2009 and 2010 the broker had wrongly assured the homeowner(s) that they had insurance cover. The judgment by Matthews AJ is about an unsuccessful application by the insurance broker’s professional indemnity insurer to be removed from the proceedings.

real estate agent

grants — Thu, 03 May 2012 23:29:32 +0000

In Cole v Euro-Asia Investments Co Ltd & ors [2012] NZWHT Auckland 25 the Weathertight Homes Tribunal decided that a real estate agent’s representation to a prospective purchaser in 2006 that they did not need to get a pre-purchase report because the house was brand new and had a new CCC was misleading, however, did not cause any loss. This was because the representation was superseded by later legal advice and was not an effective cause of any loss associated with the leaky home.

unit title scheme

grants — Wed, 02 May 2012 20:55:34 +0000

In St Johns College Trust Board v Body Corporate 197230 & ors [2012] NZHC 827 the High Court had to consider the terms of a scheme under s48 of the Unit Titles Act 1972 in circumstances where the costs to remediate leaky home issues with common property was $3M and unit property $1M, however, those unit owners with the greatest share of unit entitlement would receive no benefit from the leaky home remedial works. The Court decided that notwithstanding the differing benefits to unit owners the only outcome that achieved fairness to all owners was to apportion common property repair costs based on unit entitlement.

christchurch earthquake

grants — Thu, 12 Apr 2012 20:34:25 +0000

In the recent decision in Pickering v Straubel & anor the High Court had to consider whether s82 of the CERA Act 2011 enabled it to override s4 of the Limitation Act to enable a plaintiff to proceed with a claim that was filed at the Wellington High Court (because the Christchurch Court Registry was closed) one day after the expiry of the 6 year limitation period. The Court decided that the power under s82 to extend/shorten time periods did not enable it to override s4 of the Limitation Act and in any event the plaintiff’s actions occurred prior to s82 coming into force on 18 April 2011 and s82 did not have retrospective effect.

leaky home owner

grants — Wed, 11 Apr 2012 05:07:18 +0000

Again the High Court has allowed an appeal by a leaky home owner against a decision of the Weathertight Homes Tribunal. In BC180379 & anor v Auckland Council [2012] 588 the High Court reinstated a claim by the owner of unit B at the Fox Terrace Apartments that the WHT had wrongly struck out as being statute barred. The leaky home owner that originally lodged the claim in October 2005 had sold the unit and assigned their claim to a LAQC established by them. The High Court held the assignment was valid, so the claim was not statute barred. Section 55 in the WHRS Act 2006 to the effect that a leaky home owners’ claim terminated on sale did not apply because the sale in this case took place before s55 came into effect.

leaky home plasterer

grants — Sun, 01 Apr 2012 21:26:27 +0000

The High Court in a judgment 30 March 2012 (Stanley v McDonald & ors MNC [2012] NZHC 597) set aside a transfer of shares by Darren McDonald to his wife made after the Weathertight Homes Tribunal entered a judgment against him for $332,897. The Court set aside the transfer under s348 of the Property Law Act 2007. Hopefully this transfer will enable a leaky home owner to enforce her judgment

Building certifiers liability

grants — Sun, 11 Mar 2012 22:16:43 +0000

In 2 proceedings about leaky home complexes the individual building certifiers that performed inspections sought to be struck out as parties on the grounds that they did not personally owe duties to the leaky home owners. By a judgment 8 March 2012 in BC318596 & ors v Mathis & ors [2012] NZHC 373 Priestley J confirmed the judgment of Doogue AJ of 7 October 2011 and dismissed the certifiers’ applications. The Court decided that there was nothing in the Building Act 1991 that shielded the certifiers from a tort liability and ultimately the certifiers’ liability would depend on the evidence at trial.

LIM errors

grants — Mon, 05 Mar 2012 23:19:20 +0000

In the decison in Marlborough District Council v Altimarloch Joint Venture Ltd & ors [2012] NZSC 11 the Supreme Court confirmed that if a Council negligently gives erroneous information in a LIM and the recipient relies on the information to its detriment the Council will be liable for the loss their negligence has caused.

leaky homes appeal

grants — Sun, 26 Feb 2012 23:32:17 +0000

By the judgment 17 February 2012 in Auckland Council v Coleman [2011] NZHC 175 the High Court allowed an appeal by the Council against the refusal of the Weathertight Homes Tribunal (S Pezaro) to join a person that provided a pre-purchase building report to the Colemans before they bought the property. The Court decided that the Court had jurisdiction to hear the appeal under s93 of the WHRS Act 2006. A right of appeal exists where the effect of the decision appealed from is to finally determine a claim or a proposed claim against a party or intended party. The Court decided that there was a tenable claim under the Fair Trading Act 1986 against the pre-purchase inspector.