NBR – TUESDAY AUGUST 2, 2016
Court dismissal of time bar helps claimants in $250m leaky homes class action.
Auckland lawyer Adina Thorn, who is leading a $250 million class action against James Hardie over defective building products, says the Supreme Court’s ground-breaking decision last week throwing out a 10-year limitation defence provides certainty for her case.
The Supreme Court dismissed Carter Holt Harvey’s appeal over a Ministry of Education claim the company is liable for the cost of fixing about 890 leaky schools.
The country’s top court turned down the Auckland-based company’s appeals that the negligence claim was arguable and dismissed its bid to impose a 10-year limitation period that could have excluded about 600 buildings from the suit.
Ms Thorn says one of the key claims in James Hardie’s defence in the $250 million class action has now been wiped out. The time-bar has deterred homeowners from pursuing action.
“The court found the rule does not apply to the manufacturing of allegedly defective housing products.
“It applies only to building work. It’s been a sorry time for builders as the law has skewered them because people haven’t been able to get at building product until now.”
The Supreme Court is allowing the Education Ministry to mount a case that Carter Holt Harvey had negligently misstated a variety of claims about the cladding product, saying the context of a trial was the best forum for it to be tested and analysed.
The ministry launched a claim against cladding manufacturers CHH, James Hardie and CSR in April 2013 to help cover a bill that was estimated to be as much as $1.5 billion. It has since reached confidential settlements with James Hardie and CSR, though there are some cross-claims against those parties as at least 73 school buildings used a mixture of cladding products.
Ms Thorn tells NBR Radio the Supreme Court’s decision opens up the way for class action claims against building product manufacturers people believe have sold and manufactured faulty and defective building products leading to leaky homes.
“The court’s decision is huge in terms of opening up the doors for the class action against James Hardie and for the Ministry of Education to go to full trial.”
She says another key message from the Supreme Court decision was safety. “The courts don’t like anything unsafe in buildings occupied by people and children.”
The next step in Ms Thorn’s class action is a court hearing in November when James Hardie will seek to remove some of the litigants and ask for more details of the claims. “It is a strenuously fought case,” Ms Thorn says.