| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 9/2013 [2014] NZSC 67 |
| BETWEEN | JOHN ANTHONY OSBORNE AND HELEN OSBORNE |
| AND | AUCKLAND COUNCIL THE WEATHERTIGHT HOMES TRIBUNAL |
| Hearing: | 5 November 2013 |
Court: | Elias CJ, McGrath, William Young, Glazebrook and Tipping JJ |
Counsel: | T J Rainey and J P Wood for Appellants |
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…
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- Case
- [2014] NZSC 67
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