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Supreme Court slams leaky home legislation as 'tortuous quagmire', rules in favour of Whangarei homeowner

Thursday 22nd December 2016

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The Supreme Court has criticised leaky homes legislation as slow and "tortuous" for one homeowner, ruling in favour of her appeal against Whangarei District Council after lower courts said she was time-barred from court proceedings.

Olivia Waiyee Lee filed proceedings against the council in the High Court in May 2014, within the six-year period after she applied for an assessor's report in August 2008. The Weathertight Homes Resolution Services Act (2006) has a provision in it which requires legal action to be taken within six years of the cause of action.

Lee said the application for an assessor's report was the cause of action, but the High Court held - and the Court of Appeal upheld - that the cause of action had occurred before May 2008, as Lee had obtained reports in February and April that year and letters from May 2008 showed she understood the nature of the problems in the house. The courts therefore said Lee's proceedings had been brought out of time, and summary judgment was given in favour of the council.

The Supreme Court bench preferred Lee's interpretation, saying interpreting the act too narrowly risked people with leaky homes falling into procedural traps, which would not be in line with the purpose of the act.

"The process for Ms Lee has been tortuous and fraught with procedural difficulties," the justices said. "The procedural quagmire has not been of her making ... In Ms Lee’s case the WHRS Act has not lived up to its purpose of providing 'speedy, flexible, and cost-effective' (or indeed even readily understandable) procedures for the resolution of her leaky home problem."

Lee has also been embroiled in legal proceedings with the cladding company and builders who worked on her home, and was without legal representation for many of those proceedings, the ruling said. In November 2014, she was awarded $772,000 by the High Court against her builder, which the bench understood had not been paid.

The Supreme Court set aside the High Court's order for summary judgment, and awarded costs of $25,000 to Lee.

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