23.07.2018

Leaking Buildings: A Council Class Action In The Making?

We are now on what may be called the “third wave leaky buildings”.

The first wave was the 1990s tide of leaking residential buildings, typically due to monolithic cladding installed without a cavity. In the 2000s came the second wave of leaking high rise residential and commercial buildings, particularly once the Supreme Court in Spencer on Byron concluded that the policies behind the Building Act 1991 did not justify distinguishing between duties of care owed by councils to owners of commercial versus residential property. Now we are well into the third wave, when repairs undertaken on defective buildings themselves fail and the buildings continue to leak or have other problems despite supposed compliance with the Building Act 2004 and the building code.

One response has been to recognise that it is not just faulty construction methodology that results in leaky buildings but potentially also the use of defective cladding products. Much attention has been paid to the fact that New Zealand imports a lot of the products that are used on buildings, including cladding components. The last 5 years have seen the beginning of actions (including class actions) against manufacturers and suppliers of cladding products.

This paper addresses, first, the potential liabilities of owners of buildings and others faced with a defective repair and includes discussion of some of the recent cases regarding allegedly substandard materials. We conclude by suggesting some practical ways to assist in ensuring (or at least raising the likelihood) that materials used in your construction (or remediation) project comply with the building code.

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