Weathertight Homes Tribunal Process
- The claimant serves a notice of adjudication on each party to the construction contract.
- The claimant must as soon as practicable, select an adjudicator in accordance with the provisions of the Act, where possible with the agreement of the parties. Where no agreement is possible the authorised nominated body must select an adjudicator.
- Within 5 working days of receiving the adjudicator's notice of acceptance of the appointment, the claimant must refer the dispute to the adjudicator.
- The respondent(s) after receiving the notice of adjudication must serve on the adjudicator and parties a response within 5 working days or such other timeframe agreed to by the parties. Any documents relevant to the response must be served with the response.
- The claimant may serve a response and further documents on the adjudicator and the parties within 5 working days of receiving the respondent's response.
- The adjudicator must issue a determination within 20 working days of the expiration of the time for the respondent to reply. If the parties agree the time for determination can be extended.
- If any party fails to comply with the determination, any other party may apply to the Court to have the adjudicator's determination enforced as a judgment.
key points
Refer: http://www.justice.govt.nz/tribunals/wht
The Weathertight Homes Tribunal provides speedy, cost-effective and independent adjudication for leaky home claims brought under the Weathertight Homes Resolution Services Act 2006
All claims relating to leaky homes involve a two-stage process: assessment and resolution. The Department of Building and Housing (DBH) deals with the assessment stage and the Weathertight Homes Tribunal handles the resolution stage.
Claims over $20,000
If a home owner's claim is found to be eligible and the repairs needed are assessed at over $20,000, or the repairs made cost over $20,000, the claimant may apply to the Tribunal for adjudication.
Claims under $20,000
Claims for $20,000 or less follow a more streamlined process within the Department, but if a settlement is not reached this way the claimant may apply to the Tribunal for adjudication.
Key points
Any party to a contract for construction work can refer a dispute to adjudication with the consent of the other parties.
o Under the Act the definition of construction work is currently limited to work involving: erection, alteration, repairs, restoration, demolition, and maintenance.
o From 1 September 2016, construction work will include design, engineering, and quantity surveying work, enabling construction professionals to utilise the Act’s procedures.
The adjudicator’s fees are agreed between the adjudicator and the parties, who are jointly responsible for paying the adjudicator’s fees and expenses.
The process requires the parties to provide their position in writing, along with relevant documents, to the adjudicator.
The adjudicator has the discretion to appoint an expert advisor.
The adjudicator can convene conferences to discuss the process of the adjudication, and may also conduct a site inspection of the construction work.
The adjudicator can issue directions to the parties, including that any relevant material be provided.
The adjudicator must issue the decision in the dispute within 20 working days after receiving all the required information from the parties.
ARBITRATION PROCESS
There must be a binding agreement between the parties to submit disputes to arbitration.
Once parties agree to refer a dispute to arbitration, an arbitrator is appointed, and the following process occurs:
A preliminary meeting is typically held with parties and advisors at which the parties and the arbitrator:
decide the way they wish to have the question decided;
set a timetable for the arbitration process; and
agree how costs and fees are to be paid.
The arbitrator typically requires parties to deposit funds in trust to cover his/her fees and the other costs of the arbitration.
The claimant commences the process by filing a statement of claim, setting out the details of the dispute.
The respondent then files a defence to the claim, and any counterclaim.
The claimant may then be ordered to file a response to the defence, and will be ordered to file a defence to any counterclaim.
Both parties are required to file an affidavit listing all relevant documents.
The parties are able to inspect each other’s documents.
If parties have engaged expert witnesses, statements from them are required.
The arbitrator may order the parties to attend mediation to attempt to settle the dispute.
The arbitrator will convene hearings to ensure compliance with the timetable.
Hearings are conducted in private, unless agreed otherwise. Where parties agree that a hearing is not required, the arbitration can be held “on the papers”. In either scenario, the rules of natural justice apply.
After the hearing, the arbitrator makes a decision (the award). The award is final, and binding on both parties.
Parties may apply to the High Court to enforce the award as a judgment.
A party dissatisfied with the award may apply to the High Court to have it set aside.
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“The Michael Thornton team were at all times considerate, understanding and professional in achieving a positive outcome for our family after we discovered our family home was a leaky building. The proceeding was a difficult and stressful time for us and we very much appreciated the advice we received from them.
I recommend them to anyone who finds themselves in this unfortunate situation.
-Jenny Anderson”