27.11.2019

ACP Cladding Update – Class Action Proposed

Media reports indicate that class action litigation in relation to ACP cladding is very likely.  A litigation funder has announced it will be funding a class action lawsuit for owners of buildings clad in ACP cladding with a combustible core comprised wholly or substantially of polyethylene.

Hesketh Henry partner Helen Macfarlane and solicitor Charlotte Lewis  have been raising concerns regarding the presence of ACP cladding on New Zealand high-rises since early 2018.  For a link to the paper prepared by Helen and Charlotte, click here.

The research and work undertaken by Helen and Charlotte in early 2018 identified that the Carter Holt Harvey and James Hardie class action litigation could pave the way for class actions against manufacturers and suppliers of ACP cladding, alleging (non-exhaustively) negligence, negligent misstatement, and statutory liability, e.g., under the Fair Trading Act.  For discussion on class action litigation arising out of defective building products, see:

https://www.heskethhenry.co.nz/insights-opinion/liability-for-defective-building-products-carter-holt-harvey-ltd-v-minister-of-education-ors-2015-nzca-321/   

https://www.heskethhenry.co.nz/insights-opinion/leaking-buildings-a-council-class-action-in-the-making/

Helen is a specialist in construction and insurance issues and has a special interest in ACP cladding and other fire-safety compliance issues (such as compliance with passive fire resistance requirements) and associated legal questions, including product liability, legal responsibility for defective and / or dangerous cladding building systems, and regulatory reform of the sector.    Helen is a council member of the Society of Construction Law and has presented to a number of construction and legal industry groups on the product liability and insurance issues posed by ACP cladding and other fire-safety compliance concerns.  Most recently, in November of 2019 she presented a Legalwise webinar on MBIE’s proposed regulatory reforms in the construction sector, click here for a copy of the paper

In late 2018, Helen was also quoted in a number of news reports concerning the status of investigations into ACP cladding in New Zealand and what (if anything) MBIE was proposing to do in response. 

For a link to Helen’s comment in news reports, see:

https://www.rnz.co.nz/news/national/365627/grenfell-like-cladding-on-nz-buildings-not-audited-correctly 

https://www.stuff.co.nz/business/107594201/building-owners-face-higher-insurance-premiums-if-they-have-exterior-combustible-cladding

Helen and Charlotte attended the Safe Cladding, Buildings & Façade Innovation Summit in Auckland on 21 November 2019 where they heard from leading fire engineers, building surveyors, and Council representatives, as well as speakers from MBIE, IAG and insurance brokers, Crombie Lockwood.  The Summit speakers traversed a number of topical issues, including the current landscape for professional indemnity and property insurance, creating a culture of accountability across the building supply chain, improving compliance with the fire safety standards in the New Zealand building code and building and designing safe and resilient buildings.  Helen and Charlotte will continue to monitor developments on these matters closely with a focus on identifying means – whether regulatory or best practice – of improving compliance outcomes.  If you have any enquiries, please get in touch helen.macfarlane@heskethhenry.co.nz .

 

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