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High Court gives go-ahead for leaky buildings class action

20 October 2016 - By Kate Geenty

Owners of leaky buildings clad in fibre cement products Harditex and Titanboard have been given the go-ahead by the High Court to proceed with a class action against building materials firm James Hardie.

The claims allege that James Hardie was negligent in its design, manufacture and supply of both the Harditex and Titanboard cladding systems. James Hardie denies the allegations.

Dan Parker of Wellington firm Parker & Associates is representing more than 80 property owners – 19 owners of buildings clad in Titanboard product and over 60 property owners of buildings clad in Harditex – in the class action.

Class actions, or representative actions, are not common in New Zealand and require court permission to proceed.

The first Harditex claim was brought by Tracey Cridge and Mark Unwin, who discovered what they thought was a minor leak was in fact widespread internal water damage that would take about $300,000 to fix. The next Harditex claim was brought by Katrina Fowler and Scott Woodhead, who own a Wellington duplex completed in 2000. In 2015, Parker & Associates added a group of 19 commercial units, alleging negligence and a breach of the Fair Trading Act 1986 in relation to Titanboard, which is another James Hardie fibre-cement cladding product.

Opt-in period

The judge has granted an opt-in period for others to join the representative action, but Mr Parker said the timeframes were tight. “Opt-in periods range from 10, four and two weeks from the judgement date depending on the representative claim so there is a real urgency for those yet to opt in to get onboard.”

Claimants have an opt-in period of 10 weeks from the date final representative orders are made to join the Cridge claim. Mr Parker said final orders are expected to be made soon. In relation to the Fowler proceedings new claimants have an opt-in period of four weeks from the date of final representative orders, and anyone wanting to join the Titanboard proceeding will have an opt-in period of two weeks from the date of final representative orders.

Mr Parker expects more people to join the class action, saying the firm has been approached by a “significant number” of people.

He said it could take up to 18 months or two years for the case to get to trial. “I’d say any hearing for the matter is not going to be 2017, it’ll probably be 2018 at the earliest.”

Group members of the claim are pooling resources to pay for the class action.

Litigation funding in another action

Meanwhile, Auckland firm Adina Thorn Lawyers has taken a different approach to its $200 million-plus product liability class action against a number of James Hardie companies, instead of getting claimants to pay it is using the UK-based litigation funder Harbour Litigation Funding to finance the action.

“The backing of a funder is enabling us to litigate against a very sophisticated large organisation that has a long history of litigation (particularly with asbestos related claims),” Ms Thorn said in a press release earlier this year.

The class action Ms Thorn is taking involves over 350 buildings. As some of those buildings are apartment blocks there are over 1000 property owners involved.

“Many suffer from significant weathertightness and mould issues. The owners allege they have suffered extensive losses, damages and health issues that are caused by faulty James Hardie materials,” Ms Thorn said.

Ms Thorn filed a statement of claim against seven James Hardie companies in the High Court in Auckland in December 2015. A court hearing is expected to take place in November to see if the claim can proceed.

Last updated on the 16th September 2019