Hundreds of leaky home owners
stand to gain from a Supreme Court test case that could open
the doors to their claims being heard, a lawyer says.
Auckland couple John and Helen Osborne thought their claim
against Auckland Council would be heard by the Weathertight
Homes Tribunal, but were told the claim was ineligible
because it was lodged after the statutory 10-year time limit.
The Remuera couple appealed, arguing the 10-year clock should
have started when the code compliance certificate was issued,
rather than when construction ended.
The case has passed trough two courts before its final
hearing in the Supreme Court in Wellington yesterday.
Auckland Council's lawyer, Karen Clark QC, argued the
eligibility criteria had been properly applied in the
But the Osbornes' lawyer, Tim Rainey, said outside court that
the leaky home legislation should be interpreted to make all
timely cases eligible.
"There's no really good reason for it not to be interpreted
that way - it's just a case of the technical use of language
and the word 'built' getting in the way of common sense."
Mr Rainey said the Osbornes had been left in a "hopeless
"The Osbornes were in a situation where they had a timely
claim against the council, they could have sued the council
for damages in a court and, had they been successful, they
would have been compensated for the cost of fixing up their
"Instead they went and registered for the Weathertight Homes
Resolution Service. By the time they did their assessment
report and came back and told them they were not eligible, it
was too late - the limitation period had, in the meantime,
Mr Rainey estimated there were about 300 similar claims, some
of which related to multiple-unit developments, which could
bring the number closer to 500.
Most of those were in Auckland.
Mr Osborne, an engineer, and his wife have now spent more
than $300,000 on fully repairing the home they still live in.
The couple would have to work significantly longer to pay off
their mortgage while supporting their young family, Mr Rainey
The Osbornes' home was built in 1996, with code compliance
certificates issued in February and April the following year.
The couple bought the house in April 1997, and discovered
leaking later that year. Failed repair attempts were carried
out between July 1997 and 2002.
A claim was filed with the tribunal in February 2007, but
only matters related to the later repairs were deemed
In a judicial review in 2011, the High Court agreed the clock
started when physical building work ended, rather than when
approval was issued.
The Supreme Court reserved its judgment yesterday.