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Another win for Martelli McKegg leaky building clients

By - 14 Aug 2012

The High Court released its decision in the Auckland Council v Blincoe & Ors claim yesterday. The decision is a victory for home owners, as the High Court has confirmed that local Councils should not have approved the use of sealant around windows.  The successful parties were represented by Martelli McKegg and Grant Illingworth QC.

Many leaky homes were built without proper flashings around windows. Silicon sealant was often used instead of metal flashings, which did not provide adequate protection against leaks. In Auckland Council v Blincoe & Ors, the Auckland Council appealed against a decision of the Weathertight Homes Tribunal. One of the Council's grounds for appeal was that it was entitled to accept the use of silicon sealant rather than metal flashings because this was an "acceptable solution", i.e. a method of construction approved by the Building Industry Authority as meeting the requirements of the Building Code.

The High Court disagreed. It held that the use of silicon sealant was not an acceptable solution. What the Building Industry Authority had approved was the use of a proprietary seal, not the use of silicon sealant. The Court observed that a "proprietary seal" was "one manufactured or marketed under a patent or registered trademark" and would likely be the subject of specific instructions regarding its application. Silicon sealant did not fall within that definition, so the use of silicon sealant had not been approved by the Building Industry Authority. Therefore the Council was not entitled to accept the use of silicon sealant alone to waterproof the sides of the windows.

This case re-affirms the principle that Councils may face liability for accepting practices which were common at the time the work in question was done, such as the use of silicon sealant rather than metal flashings. No matter how commonplace a practice is/was, local Councils may not approve it without having reasonable grounds to believe the practice would meet the requirements of the Building Code.  When conducting inspections, local Councils were required to exercise independent judgment as to whether the work being inspected was likely to meet those requirements.

For more information please contact:

Lisa Gerrard


Auckland Council v Blincoe - reserved decision of Hon. Justice Courtney


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