Osborne v Auckland Council - [2014] NZSC 67

IN THE SUPREME COURT OF NEW ZEALAND

SC 9/2013
[2014] NZSC 67

BETWEEN

JOHN ANTHONY OSBORNE AND HELEN OSBORNE
Appellants

AND

AUCKLAND COUNCIL
First Respondent

THE WEATHERTIGHT HOMES TRIBUNAL
Second Respondent

Hearing:	5 November 2013
Court:	Elias CJ, McGrath, William Young, Glazebrook and Tipping JJ
Counsel:	T J Rainey and J P Wood for Appellants K L Clark QC and C R Goode for First Respondent M J Andrews and T I Hallett-Hook for Attorney-General as Intervener
Judgment:	10 June 2014

JUDGMENT OF THE COURT

AThe appeal is allowed with the result that the eligibility decision of the Tribunal chair is set aside and there is a declaration that the appellants’ claim is eligible.
BLeave is reserved to apply for further relief should that be necessary.
CIn relation to this appeal, the appellants are awarded costs of $25,000 and reasonable disbursements against the first respondent. They are also awarded costs on the judicial review proceedings in the High Court and on the appeal to the Court of Appeal, in sums to be fixed by those courts.

____________________________________________________________________

REASONS

(Given by William Young J)

Introduction

In issue in this appeal is the extent to which s 14(a) of the Weathertight Homes Resolution Services Act 2006 (the WHRSA) constrains the entitlement of the owners of a leaky home to invoke the processes and remedies available under the WHRSA. Section 14 provides for eligibility criteria which are to be satisfied before an owner’s claim may be assessed and determined under the WHRSA and it relevantly provides as follows:
14 Dwellinghouse claim
The criteria are that the claimant owns the dwellinghouse to which the claim relates; and—
(a)it was built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought; and
…
(Emphasis added)

The Auckland Council maintains that the words we have italicised operate as a limitation period which operates separately from – and more restrictively than – that provided for by s 393 of the Building Act 2004. Mr and Mrs Osborne – who are claimants under the WHRSA – contend that those words should be construed so that a claim is eligible under s 14(a) of the WHRSA if it is, or may be, within the s 393 limitation period.

The problem arises in this way. The Osbornes bought their house on 26 April 1997. It was newly built. Construction work had been substantially completed by 15 August 1996 (the date of the last Council inspection), although the code compliance certificates were not issued until 19 February and 18 April 1997. The house began to leak in late 1997 and some repairs – for which a building consent was not obtained – were subsequently carried out. These were not effective and, on 14 February 2007, the Osbornes applied under the WHRSA for an assessor’s report. As we will later explain, this application had the effect of stopping…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZSC 67
Decision Date: 10 June 2014

CaseChat Overview and Summary

This appeal concerns the eligibility of a claim under the Weathertight Homes Resolution Services Act 2006 (the WHRSA) brought by Mr and Mrs Osborne against the Auckland Council. The central issue before the Supreme Court was whether the eligibility criterion specified in s 14(a) of the WHRSA operates as a limitation period more restrictive than that provided for by s 393 of the Building Act 2004. The Court held that s 14(a) should be construed in context and having regard to its purpose as a paraphrase of s 393 of the Building Act, with the result that a claim which may be within the long-stop limitation period provided by that section meets the s 14(a) eligibility criterion. The Court found that the interpretation of s 14(a) which has prevailed to date is that it provides a constraint on eligibility that operates in substance as a limitation period and is, in some cases, more strict than the ten year long-stop period provided for under the Building Acts of 1991 and 2004. The Court concluded that this interpretation was inconsistent with the legislative history and purpose of maintaining consistency with the ten year long-stop provision in s 393 of the Building Act. The Court found that s 14(a) should be construed as operating only to exclude claims which are necessarily barred by s 393 of the Building Act. The Court allowed the appeal, set aside the eligibility decision of the Tribunal chair and declared that the Osbornes’ claim is eligible.

Orders