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Multi unit leaky building claims and the WHRS Acts

By Andrew Steele - 26 Apr 2012 - 2 comments

On an appeal from a decision of the Weathertight Homes Tribunal (BC 180379 & ORS v Auckland Council CIV 2011-404-5330) Fogarty J recently ruled in favour of our client's appeal and confirmed the spirit of the leaky homes legislation to be remedial, with the intended purpose being to assist leaky home owners to repair their homes. He did not accept the respondents' arguments that technical procedural requirements could result in a unit owner's claim failing following transfer to their LAQC.

Although any transfer of ownership operates to terminate a claim under the WHRS 2006 Act, the previous 2002 Act, applicable to this case, did not have that result.

The Tribunal's decision to remove our client's unit from the multi unit claim was overturned.

For further information in relation to multi unit leaky building claims please contact Andrew Steele.

 

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2 comments

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Can a sole director of an LAQC claim General Damages for stress, financial strain etc for nearly 2 years of hell fighting aggressively with Auckland Council whilst pregnant and then with a young baby for much of it? There are no exemptions listed in the 2007 amendment to the Act, but despite the Carole Abraham Case 3368 no-one else appears to have gone to tribunal and won General Damages? The Minister M. Williamson could not provide an answer when I wrote to him, stating it was a legal matter.

 
Anonymousreply
 

The short and unfortunate answer to your question is no – a sole director of a LAQC cannot claim for general damages. The unsatisfactory legal reason for this is that the claim is brought by the company not the individual. Companies – says the law – can’t experience stress and anxiety. General damages are a personal remedy that can only be recovered by individuals and not companies. It is not so much an exemption that you would expect to be listed in the Act but a general principle of law.

The Court of Appeal looked at general damages in the Byron Avenue case. The companies (LAQC and investment companies) were not awarded general damages but individuals were. Up to that point we had to fight hard for general damages for trustees of family trusts. The Tribunal had refused to award them. The Court of Appeal overturned this approach so that we can now claim for trustees. The Tribunal does award general damages for individuals including trustees but I am afraid that you won’t get anywhere for a company.

 
Sarah Wroereply
 
 

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