Sharko v Weathertight Homes Tribunal HC Auckland CIV 2010-404-5960
[2011] NZHC 964
•19 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-5960
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review of decisions under sections 13, 14, 48 and 49 of the Weathertight Homes Resolution Services Act 2006
BETWEEN LYDIA THELMA SHARKO, JOHN SCOTT GRAY AND WAIRAU TRUSTEE LIMITED
Applicants
ANDWEATHERTIGHT HOMES TRIBUNAL First Respondent
ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF BUILDING AND HOUSING
Second Respondent
Hearing: 18 March 2011
Appearances: T Rainey and J Wood for the Applicants Appearance excused for the First Respondent R Chan for the Second Respondent
Judgment: 19 August 2011 at 3:00 PM
RESERVED JUDGMENT OF PETERS J
This judgment was delivered by me on 19 August 2011 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Date: ........................................
Rainey Law, Auckland (email: [email protected], [email protected]) Crown Law Office, Wellington (email: [email protected])
SHARKO & ORS V WEATHERTIGHT HOMES TRIBUNAL HC AK CIV 2010-404-5960 19 August 2011
[1] The applicants are the registered proprietors of a residential property (―house‖) in Auckland. They seek judicial review of decisions made by the first and second respondents under the provisions of the Weathertight Homes Resolution Services Act 2006 (―the Act‖). The effect of the decisions was to prevent the applicants bringing a claim under the Act.
[2] The first respondent is a tribunal constituted under the Act. It has filed an appearance advising that it will abide the decision of the Court. The second respondent is the administrative head of the Department of Building and Housing and, as Chief Executive of the Department, has responsibilities under the Act. The second respondent opposes the application for review.
[3] To succeed, the applicants must first establish a ground of review and, assuming they do so, persuade the Court that it is appropriate to grant relief in the circumstances of this case.
Issues
[4] In seeking to establish a ground of review, the applicants raise two distinct issues.
[5] The first concerns the meaning of the word ―built‖ in s 14(a) of the Act. Section 14 establishes criteria which a home owner must satisfy before they are eligible to bring a claim to the tribunal. In particular, s 14(a) requires that the dwellinghouse in question must have been ―built‖ within the period of 10 years immediately before the day on which the claim is brought (―10 year period‖). In this case, the claim was brought on 5 November 2009, meaning that the claim would be eligible only if the house were ―built‖ after 5 November 1999.
[6] In deciding whether the applicants met the s 14 criteria, the respondents considered that built means ―physically constructed‖ and/or capable of occupation. On the evidence before them, the respondents decided that the house was not built within the 10 year period and that the applicants’ claim was ineligible to proceed under the Act.
[7] The applicants’ case is that the respondents erred in construing ―built‖ as they did. The applicants’ submission is that such a meaning is too narrow and that the word must be construed and applied so as to include matters such as carrying out a final inspection of the dwellinghouse and a decision to issue a code compliance certificate. If ―built‖ is construed so as to include these matters then the house was built within the 10 year period. It is common ground that the applicants satisfy all other criteria in s 14.
[8] The second issue arises in the alternative. The applicants’ case is that, even if the respondents adopted the correct meaning of built, there was no basis for a determination in this case that the house was built prior to 5 November 1999.
[9] If the applicants succeed on either of these issues then their case is that the
Court ought to grant relief, so as to enable them to pursue a claim under the Act.
Background
[10] The relevant chronology as to when the house was constructed, occupied, subject to a ―final‖ inspection and when a code compliance certificate was issued is as follows. The inspections referred to below were undertaken by a private building certifier authorised by the Building Industry Authority pursuant to s 51 of the Building Act 1991. The same building certifier issued the code compliance certificate.
12.05.97 Transfer of site from Owner A to Owner B 08.10.97
Owner B applies to Auckland City Council for building consent under Building Act 1991
13.10.97
Auckland City Council issues building consent to undertake work in accordance with plans and specifications attached to consent
31.10.97
Inspection of foundations
14.01.98
Inspection of pre line
05.02.98
Inspection of external linings
14.04.98
Inspection of drainage
14.04.98 Gas meter fitted 03.03.99
Transfer from Owner B to Owner C
27.03.99
Domestic telephone line livened
01.04.99
Electricity meter supplied and livened
05.11.99
Critical date
08.11.99
House passes final inspection
31.10.01
Code compliance certificate issued
24.06.02
Transfer from Owner C to applicants
05.11.09
Applicants apply to second respondent for assessor’s report
to be prepared
[11] Two points regarding the chronology need to be mentioned.
[12] The first is that the only record of any ―final‖ inspection of the house is the inspection on 8 November 1999. The house passed that final inspection. Accordingly, a code compliance certificate could have been issued at any time after
8 November 1999. The code compliance certificate is evidence that the building certifier was satisfied that the building work which had been carried out complied with the provisions of the building code.1
[13] The second point is that 5 November 1999 was a Friday and
8 November 1999 was a Monday.
Scheme of the Act
[14] The purpose of the Act is set out in s 3, which reads as follows:
3 Purpose of this Act
The purpose of this Act is—
(a) to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the assessment and resolution of claims relating to those buildings; and
1 Building Act 1991, s 56(3).
(b) to provide for certain matters relating to the provision of a package of financial assistance measures to facilitate the repair of those buildings.
[15] Sections 14 to 18 of the Act set out eligibility criteria applying to different types of leaky home. Each of these provisions requires that water has penetrated the building because of some deficiency in design, construction, alteration or materials. Each also includes a temporal element in that the claim must be made within
10 years of the building or buildings, or part of the building, having being ―built‖ or
―altered‖.
[16] Although I did not receive submissions on ss 15 to 18 of the Act, I consider that ―built‖ must have the same meaning in each of these provisions. The word must also be capable of an application that is consistent with the purpose of the Act.
[17] Section 14 applies in the present case. It reads 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
(b) it is not part of a multi-unit complex; and
(c) water has penetrated it because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
(d) the penetration of water has caused damage to it.
[18] Dwellinghouse is defined in s 8 of the Act as follows:
dwellinghouse—
means a building, or an apartment, flat, or unit within a building, that is intended to have as its principal use occupation as a private residence; and
...
[19] A person brings a claim under the Act in respect of a dwellinghouse by applying for an assessor’s report (s 9 of the Act). The applicants applied to have an assessor’s report prepared on 5 November 2009. The second respondent accepted the application and instructed an assessor to prepare an eligibility assessor’s report.
[20] Section 38 of the Act provides as follows:
38 Assessor's reports are eligibility reports or full reports
An assessor's report may be an eligibility assessor's report or a full assessor's report.
[21] In his eligibility report dated 10 December 2009, the assessor came to the view that the house had not been built within the 10 year period, saying:
... the dwelling was built and occupied or ready to be occupied in the latter half of April 1999. This is six/seven months before the final inspection and six/seven months outside the eligibility period. ...
[22] By letter dated 5 March 2010, the second respondent notified the applicants that she had decided that their claim did not meet the eligibility criteria (―first decision‖). The relevant parts of the first decision are as follows:
I am writing to notify you under section 48(3) of the [Act] that, under delegation of the Chief Executive and after considering the assessor’s report and your submissions dated 4 February 2010, I have decided that the claim does not meet the eligibility criteria under the Act.
Specifically, I have decided that the claim does not meet the requirement under section 14(a) of the Act that the dwellinghouse to which the claim relates must have been built within the 10 years immediately before the day on which the claim was brought.
The claim is therefore ineligible to proceed to resolution under the Act. Matters I have taken into account include the following:
The claim application date was 5 November 2009 making 5
November 1999 the corresponding cut off ―built‖ date for eligibility. There is evidence in the Assessor’s report that indicates that the dwelling was substantially complete and capable of occupation from
April 1999.
There was a final inspection undertaken on Monday 8 November
1999.
No re-inspection was required prior to issue of the code compliance certificate.
Applying the principles outlined in the High Court in Auckland City Council
& Anor v Attorney General & Garlick Family Trust I have concluded that the
dwelling was ―built‖ on or before Friday 5 November 1999 (and was therefore built more than 10 years before the day on which the claim was brought).
While the final inspection took place on 8 November – within the window of eligibility – the dwelling could be considered ―built‖ from the date of application for the successful final inspection, unless there is evidence of significant building work after that date.
In my opinion it is more probable than not that the date of application for final inspection was prior to Friday 5 November 1999 given that the final inspection took place on the following Monday.
Your submission dated 4 February 2010 did not provide any evidence that significant building work took place after 5 November 1999.
...
[23] The applicants asked the Chair of the first respondent to reconsider the first decision.2 The Chair issued her decision on 21 April 2010 (―second decision‖), the relevant part of which is as follows:
[23] The information before me establishes that the building work on the [house] had been completed to the extent required by the building consent issued in respect of that building work by 8 November 1999 at the very latest. I consider that it is more likely than not that the building work was completed at least several days if not weeks or months before 5 November
1999. There is no information to suggest any building work did take place after 5 November 1999, nor is this specifically alleged. I accordingly
conclude that it is more likely than not that the house was built sometime before 5 November 1999. The claim is accordingly not eligible.
Grounds of review
[24] The applicants pleaded several grounds of review in their statement of claim. The grounds relied on at the hearing before me were narrower and were as follows:
(a) The respondents made their decisions under a mistake of law, namely
a misconstruction of the word ―built‖ in s 14(a).
(b)The respondents failed to take into account relevant considerations and took into account irrelevant considerations. In particular, the applicants contend that the respondents failed to have regard to the fact that ―building work‖ took place within the 10 year period, such building work being the final inspection and the decision to issue the code compliance certificate. The irrelevant considerations which the respondents are said to have taken into account are those which indicated the physical construction of the house had been completed to a point at which it was habitable prior to 5 November 1999.
(c) The decisions were made under a mistake of fact, in that they assume no ―significant‖ building work took place within the 10 year period. The applicants contend that the final inspection and the decision to issue the code compliance certificate were building work within the
10 year period.
Discussion
[25] The starting point is Lang J’s decision in Auckland City Council and Anor v Attorney-General and Anor (―Garlick‖).3 In Garlick, a decision had been made that a homeowner’s claim was eligible for resolution under the predecessor to the Act.4
The issue on appeal was whether the claimants’ dwellinghouse had been built within
the 10 year period.
[26] Lang J said at [81] and [82]:
[81] There does not appear to be any real controversy about the meaning of the word ―built‖ in this context. It needs to be given its natural and ordinary meaning, which I take to be the point at which the house has been physically constructed.
[82] One would think that it would be a relatively straightforward matter to determine the point at which the physical construction of a house has been completed. As the evidence in the present case confirms, however, that is not necessarily the case. The difficulty does not arise from the general
3 Auckland City Council and Anor v Attorney-General and Anor HC Auckland CIV-2009-404-1761,
24 November 2009.
4 Weathertight Homes Resolution Services Act 2002.
proposition that a house is built at the point when its physical construction is complete. It arises instead from the fact that it is difficult to apply that proposition to the facts of individual cases. Is a house complete when its owner takes the view that it is habitable and begins living in it? Or is it only complete when the Council finally inspects it and issues a code compliance certificate? Or does the answer lie somewhere in between these two points?
[27] Lang J considered5 that the task of forming an opinion on when a house is built, that is physically constructed, is ultimately a matter of judgement based on all the information that is available.
[28] The applicants submit that there was no real debate in Garlick on what the word ―built‖ meant, and that the matter requires further consideration in the context of this case.
[29] The applicants’ case is that the word ―built‖ in s 14(a) encompasses all work for or in connection with the construction, alteration, demolition or removal of a dwelling and includes steps such as an inspection of building work undertaken by a building certifier and the decision by a certifier to issue a code compliance certificate for the dwelling. The applicants submit that the meaning adopted in Garlick and in the respondents’ decisions, namely ―physically constructed to a point where the dwelling is habitable or capable of habitation‖, is too narrow.
[30] The applicants make two main submissions.
[31] First, they submit the plain meaning of built extends beyond physical activity, so that no violence is done to the plain meaning of the word by applying the broader meaning they propose.
[32] Secondly, the applicants submit that the broader meaning they propose is consistent with the purpose of the Act and the eligibility criteria. Counsel for the applicants submitted that the respondents’ interpretation is contrary to the purpose of the Act and is inherently unworkable and unfair.
[33] The second respondent rejects each of these submissions. I address each in turn.
Plain meaning
[34] Section 14(a) is concerned with when the house ―was built‖ or with when
―alterations giving rise to the claim were made‖.
[35] The meaning of ―built‖ must be ascertained from the text of the Act and in the light of the Act’s purpose.6
[36] ―Built‖ is not defined in the Act. The Oxford English Dictionary defines:
(a) ―build‖ as ―to construct for a dwelling; to erect (a house), make (a nest). Hence, To erect, construct (any work of masonry)...‖ and
(b) ―built‖ as ―constructed, erected, etc.‖
[37] Accordingly, the definitions in the Oxford English Dictionary concern the physical activity of building and are consistent with the meaning the respondents attributed to the word and which Lang J adopted in Garlick.
[38] In support of their submission that the word ―built‖ is capable of bearing the
broader meaning they propose, the applicants referred me to the definition of
―building work‖ in the Building Act 2004 (―Building Act‖) which is as follows:
building work —
(a) means work—
(i) for, or in connection with, the construction, alteration, demolition, or removal of a building; and
(ii) on an allotment that is likely to affect the extent to which an existing building on that allotment complies with the building code; and
(b) includes sitework; and
(c) includes design work (relating to building work) that is design work of a kind declared by the Governor-General by Order in Council to be restricted building work for the purposes of this Act; and
(d) in Part 4, and the definition in this section of ―supervise‖, also includes design work (relating to building work) of a kind declared by the Governor-General by Order in Council to be building work for the purposes of Part 4.
[39] The applicants referred to this definition for two reasons. First, counsel submitted that the definition illustrates the potential of the word built to bear a more expansive meaning than the respondents have adopted. Counsel for the applicants submitted that carrying out a final inspection and issuing a code compliance certificate constitute building work, so both must be part of the process by which a house is ―built‖ for the purposes of s 14(a). The applicants also submit that the subject matter of the Building Act and the Act is the same and that the two statutes should be ―harmonised‖ as a result.
[40] Counsel for the second respondent submitted that the definition of building work in the Building Act does not affect the meaning of built in s 14(a) of the Act. Definitions in one Act cannot be imported into another unless by express provision. In any event, counsel submitted that a final inspection is not within the definition of building work and nor is the issue of code compliance certificate. Also, the Building Act and the Act are entirely different pieces of legislation and their subject matter is not the same.
[41] I am not persuaded that the definition of building work has any particular relevance when ascertaining the meaning of ―built‖ in s 14(a) of the Act. The purposes of the Building Act are to provide for the regulation of building work, the establishment of a licensing regime for building practitioners and the setting of performance standards for buildings to ensure that particular ends are met. In contrast, the Weathertight Homes Resolution Services Act 2006 is intended to assist owners of leaky homes to resolve claims in a speedy and efficient manner. Also, I do not consider that a final inspection and issue of code compliance certificate are
―building work‖. Rather they are the performance of a function relating to building
work.7
[42] Counsel for the second respondent submitted that other provisions in the Act
are consistent with built meaning ―physically constructed‖.
[43] First, s 14(a) requires either that the dwellinghouse was built within the
10 year period or that the claim arises out of ―alterations made to the dwellinghouse‖
within the 10 year period. Counsel for the second respondent submitted the words
―alterations made to the dwellinghouse‖ clearly signal physical work and not matters such as a subsequent inspection or certification. Similarly, these matters should be excluded when determining when the house was ―built‖. The final inspection or issue of a code compliance certificate must have the same significance, or lack of it, whether the applicant seeks to bring a ―building‖ claim or a claim in respect of alterations. Time must start to run at the same point, in either case.
[44] Secondly, I referred in [15] above to the other provisions in the Act which provide eligibility criteria. These different provisions apply to multi-unit and stand- alone complexes (as defined in the Act). In each case time starts to run when the dwellinghouse or dwellinghouses or complex or affected common area is ―built‖. I consider that interpreting built to mean physically constructed fits the broader scheme of these provisions.
[45] To conclude, I consider that the plain meaning of the words ―it was built‖ or
―the house was built‖ is the point in time at which it can be said the house was physically constructed. I also consider that meaning of the word is consistent with the other provisions of the Act, to which I have referred.
Purpose of the Act
[46] The applicants’ second submission concerns the purpose of the Act and
eligibility criteria. In the course of this submission, the applicants referred to s 3 of
7 Building Act 2004, s 393(1)(b) and (2).
the Act,8 the reason why the 10 year period was adopted in ss 14 to 18 and the consequences which follow for a claim, depending on the point at which time starts to run on the 10 year period.
[47] The applicants submit that the meaning of built that the respondents adopted leads to results that are inconsistent with the purpose of the Act, whereas the meaning they propose is consistent with that purpose. Counsel for the applicants referred me to Commerce Commission v Fonterra Co-operative Group Ltd,9 in which the Supreme Court said:
[22] It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment10 must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross checked against purpose in order to observe the dual requirements of s 5. In determining purpose the court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.11
[48] There is no dispute between the parties that the meaning of s 14(a) must be considered in light of the purpose of the Act. There is also no dispute between the parties that the 10 year period derives from the ―long-stop‖ limitation provision which appeared in s 91 of the Building Act 1991 and which now appears in s 393(2) of the Building Act (2004).
[49] Section 393 as it stands now, and it has not been materially amended on this point since the Act came into force, is as follows:
393 Limitation defences
The Limitation Act 2010 applies to civil proceedings against any person if those proceedings arise from—
(a) building work associated with the design, construction, alteration, demolition, or removal of any building; or
8 Above at [14].
9 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767.
10 ―Enactment‖ means ―the whole or a portion of an Act or regulations‖: see s 29 of the
Interpretation Act 1999.
11 See generally Auckland City Council v Glucina [1997] 2 NZLR 1 (CA) at 4 per Blanchard J
for the Court, and Burrows Statute Law in New Zealand (3rd ed, 2003) at 146 and following.
(b) the performance of a function under this Act or a previous enactment relating to the construction, alteration, demolition, or removal of the building.
(2) However, no relief may be granted in respect of civil proceedings relating to building work if those proceedings are brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.
(3) For the purposes of subsection (2), the date of the act or omission is,—
(a) in the case of civil proceedings that are brought against a territorial authority, a building consent authority, a regional authority, or the chief executive in relation to the issue of a building consent or a code compliance certificate under Part
2 or a determination under Part 3, the date of issue of the consent, certificate, or determination, as the case may be;
and
(b) in the case of civil proceedings that are brought against a person in relation to the issue of an energy work certificate, the date of the issue of the certificate.
[50] The effect of s 393(2) is that no relief may be granted in a civil proceeding relating to building work after 10 years from the date of the relevant act or omission.
[51] Applying that to this case, as at the date they applied for an assessor’s report, the applicants were entitled to bring a civil proceeding against the building certifier who carried out the final inspection.
[52] The next point to address is the applicants’ submission that the 10 year period in s 14(a) derives from the 10 year period in s 393(2) of the Building Act. In this regard, counsel for the applicants referred me to various external materials relating to the 2002 Act and the Act itself.12 The following paragraphs from the report of the Social Services Committee on the Weathertight Homes Resolution Services
Amendment Bill reflect the gist of the materials to which counsel referred me:13
12 Eg Report to Cabinet Business Committee Weathertightness Advisory and Dispute Resolution Service (29 October 2002) at [19]–[20]; (19 November 2002) 604 NZPD 2156–2157, Hon Dr Michael Cullen; (31 August 2006) 633 NZPD 5067–5084.
13 Weathertight Homes Resolution Services Amendment Bill 2006 (75-2) at 7–8 (in respect of the
2006 Act).
Ten-year long-stop limitation period
The ten-year long-stop limitation period is a long-standing provision first enacted in the Building Act 1991 and now contained in section 393 of the Building Act 2004. The provision applies to all claims in respect of building work, and was included in section 7 of the WHRS Act when it was enacted in 2002. The effect of the provision is that any claim in respect of a leaky building must be brought within ten years of when the dwellinghouse was built or altered.
Some submitters recommend that the ten-year long-stop limitation period for making WHRS claims be removed or extended to 15 years, or should revert to the ―six years from the time of discovery‖ under the Limitation Act 1950. Claimants believe that many home owners will not recognise the signs of a lack of weathertightness until more than ten years have passed.
For a number of reasons, we do not support any amendment to the ten-year long-stop limitation period. Current insurance contracts are based on the ten-year limitation period, and any amendment to the provision would affect the insurance market. Insurers may also be reluctant to provide insurance for damage that is more than ten years old, as the older the damage for which a claim is made, the harder the claim is to defend. It is very difficult to determine liability after ten years as gathering and hearing evidence and making decisions on liability are complicated by the passage of time.
Industry participants have now accepted this provision as a necessary limitation on the liability of participants in the construction of buildings. Any amendment may prompt calls for a replacement measure with a similar effect of providing certainty regarding the nature and extent of potential legal claims for building work. Territorial authorities and building practitioners are unlikely to support the WHRS process if this provision is removed.
Moreover, the types of building that fit the profile outlined in the Hunn report appear to be showing signs of water ingress well within the ten-year limit-the current average age of a dwelling when the claimant applies to the WHRS is 5.9 years. The ten-year provision motivates people to make their claims quickly. An education campaign being developed will inform consumers about the signs of non-weathertightness and the limitation period that applies to leaky building claims.
[53] Counsel for the applicants submitted that by adopting the 10 year period for the purposes of the eligibility criteria in ss 14 to 18, Parliament must have intended that any claim not barred under s 393(2) would be eligible for resolution under the Act. So the point at which time starts to run on the 10 year period should be the same, whether a claim is made under the Act or in a civil proceeding.
[54] Counsel also submitted that the meaning of the word built that the respondents have adopted may lead to time starting to run under the Act before it
starts to run under s 393(2), with the consequence that some claims are not eligible to proceed under s 14(a) but are still alive for the purposes of s 393(2) of the Building Act. Counsel submitted that this cannot have been intended.
[55] Lastly on this point, counsel referred me to s 37(1) of the Act. Section 37(1) provides that the making of an application for an assessor’s report is deemed to be the commencement of proceedings for the purposes of the Limitation Act 2010 and any other enactment that imposes a limitation period. Counsel for the applicants submitted that it is apparent from s 37(1) that the making of an application for an assessor’s report ―stops the clock running‖ so that such claims can be resolved under the Act. Given that, counsel submitted that the eligibility criteria should not be applied to exclude claims from the scope of the Act.
[56] The applicants also submit that the respondents’ interpretation of built is impractical. It means that the tribunal is required to engage in a costly and time consuming investigation of available sources as to when the ―last nail was hammered‖ into the dwellinghouse, to which a clear cut answer may not be available.
[57] I accept the submissions that the 10 year period in s 14(a) was adopted because it was the period in the long-stop provision in s 393(2) of the Building Act
2004, and that time starts to run on the long-stop provision when the act or omission referred to in the provision occurs. I also agree that, in a case such as the present, that may mean that time starts to run under the eligibility criteria before it starts to run under s 393(2), with the consequence that a homeowner may be able to obtain relief in a civil proceeding but not by a claim under the Act.
[58] I am not satisfied, however, that such a consequence warrants setting aside what I consider to be the plain meaning of built in favour of the interpretation the applicants propose. Indeed, I do not agree that the fact that time may start to run on the 10 year period from the time of physical construction leads to an unworkable or impractical or absurd result.
[59] Standing back, it is some deficiency in design, material or construction which gives rise to a lack of weathertightness. The building certifier may have erred in failing to detect that deficiency or may have been negligent in issuing a certificate. However, in my view, the primary focus of the Act is addressing the lack of weathertightness in the dwelling.
[60] Secondly, there is some force in the submission of counsel for the second respondent that the possible anomalies to which the applicants have referred are either overstated or will occur only in very few cases.
[61] To conclude this point, I am not satisfied that any unworkable or impractical result follows from construing the word ―built‖ to refer to the point in time at which it can be said the dwellinghouse was physically constructed, with the consequence that time starts to run at that time on the 10 year period.
Were the respondents’ decisions unreasonable on the facts of this case?
[62] I turn now to the applicants’ alternative submission, as set out in [8] above. [63] I agree with the view Lang J expressed in Garlick, namely that the issue of
when a dwellinghouse is built for the purposes of s 14(a) is ultimately a matter of judgement based on all available information. I also agree that it is for the claimant to establish that their claim falls within the eligibility criteria in s 14.14
[64] Counsel for the applicants submitted that there is no evidence to suggest that physical construction of the house did not occur after 5 November 1999 but before
8 November 1999.
[65] Counsel for the second respondent submitted that on the evidence it is more likely than not that the house was physically constructed prior to 5 November 1999. It can be seen from the chronology that the person who applied for building consent
transferred the property to a third party in about April 1999. The fact that various
14 Above at [65].
services were ―livened‖ in March and April 1999 is evidence suggesting that
someone was living in the house from at least April 1999 onwards.
[66] It is common ground that no construction work was required after the final inspection on 8 November 1999. Given that, the house must have been completed in accordance with the plans and specifications attached to the building consent by that date.
[67] All of these matters led the respondents to decide that the house was built prior to 5 November 1999. In my view, there is no basis to hold that the respondents’ decisions were unreasonable on the evidence before them.
Result
[68] To conclude, I consider that the applicants have not made out any ground of review in respect of the decisions.
[69] I dismiss the application for judicial review. I appreciate that this will be a disappointing outcome for the applicants, and the fact that it follows purely from the words in the Act will be of no comfort to them, given the position in which they now find themselves.
[70] I make no order for costs in favour of the first respondent. In the usual course of events the second respondent would be entitled to costs. The parties may submit memoranda regarding costs if they are not able to resolve the matter between themselves.
..................................................................
PETERS J
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