Michael Thornton and team handle defective/leaky building claims for homeowners and other construction parties. For homeowners, key questions and considerations regarding a leaking building issue should focus on your legal options, the viability of your claim, and the settlement process.
Some important questions include:
Is my claim still within the legal time limits?
This can include limitation periods under the Limitation Act and the Building Act. A key issue with hidden defects can be when a homeowner knew or ought to have known they could claim against parties involved in the construction of a defective building. This may depend on when homeowners got a report from a building consultant identifying defects and who caused them. On receipt of such a report it is important that homeowners seek legal advice as limitation periods may have commenced. Homeowners also need to be mindful of the ten-year longstop period in the Building Act.
What evidence do I need to support my claim?
Expert evidence is crucial and may include:
Building expert
To identify defects and damage and the scope of remediation, who is responsible for causing the defects and why, initially in a report accompanied by evidence of defects including moisture testing and photographs.
Cost expert
Typically, a quantity surveyor who estimates the cost of repairs and may apportion to each party their share of the repair costs of each defect - a step which will become more critical as the government has announced plans to introduce proportionate liability.
Engineering experts
Necessary where there may be engineering issues in a house e.g., structural or geotechnical.
Valuation experts
Necessary if there is an issue of the amount of a loss in value in the house due to defects.
Council liability expert
To give evidence on reasonable council practices and how these may have been breached causing defects. The building expert may be able to give evidence on these issues if they worked for council.
Legal experts
Necessary where there may be issues arising from the purchase of the property i.e., whether the homeowner took appropriate steps to protect their position.
Should I repair first or pursue legal action first?
A critical decision homeowners must make, advice on which is typically that if homeowners can repair first and have made a claim in time they should fix before resolving their legal rights.
Who are the liable parties I can claim against (builders, councils, manufacturers)?
The lawyer will advise on this with the assistance of experts.
What compensation or damages can I realistically expect?
This will depend on a number of factors including the strength of the homeowner's legal claim and any solvency issues amongst defendants. The proposed enactment of proportionate liability will impact upon this significantly.
What are the costs involved in pursuing a claim and can I recover legal fees?
Will depend on how long and complicated the proceedings are. Some but not all legal and experts' costs are recoverable if there is successful outcome at trial but as most claims settle before trial the homeowner will need factor into their settlement expectations the amount spent on legal and expert costs in the litigation.
What are my options if some liable parties are insolvent?
This can present problems in achieving a reasonable settlement and the proposed move to proportionate liability instead of joint and several liability (last man standing) will make it more critical to receive appropriate advice on these issues.
What is the typical timeline and process for resolving such claims?
The court process is notoriously slow though the High Court Rules are being amended in a way which is expected to speed up the resolution of cases in the High Court. How long a case takes depends on what issues need to be considered before the matter can be 'set down' - allocated a hearing date - and whether the owner 'fixes first'.
What is the general process to settle a defective/leaky building issue?
Initial assessment and detailed building report by a qualified expert to confirm defects and scope of repair.
Seeking legal advice to evaluate claim viability and limitation periods.
Deciding whether to repair first and then litigate or litigate before repair.
Filing proceedings in the appropriate court.
Under the new High Court Rules, preparation and filing of evidence shortly after proceedings are filed. In the District Court (for claims less than $350,000) interlocutory (intermediate) steps are necessary before setting down.
Entry into a negotiated settlement possibly at or after a private mediation.
Trial and court judgment if no settlement is reached.
Carrying out of repairs following settlement or judgment, unless repairs are already complete.