Much Ado About Nothing

by Philip O'Sullivan

In May this year we witnessed the Government's long awaited revamp, or at least announcement of a revamp, to their Weathertight Homes Resolution Service. This included a $40 million pilot loan scheme at commercial lending rates. This seems rather meager given the GST and income tax windfall the Government collects as billions of dollars of capital is consumed to repair leaky buildings.

Assessment reports are now to cover both actual and probable damage. Why not keep it simple and use the building code, the Government's own regulations, as the determinant of performance? The reports are going to deal with cause (a collective sigh of relief from the legal profession) and those who might be responsible, but that's not too easy without discovery of relevant documents. They claim the assessments will be more accurate, but how will this happen? And that the average time for claims will halve, but on what basis?

Improved information and case management is promised. We'll just have to wait on that one. They are also going to educate builders and designers to make sure leaky homes are properly repaired. That assumes that they have the know-how. All I can say, it is not something you can learn in the classroom. You need to work alongside someone who already has the knowledge which is how professionals and tradespeople develop their skills.

Fast processing times are promised. Those naughty lawyers and experts are blamed for gaming i.e. creating delays, when the real problem has been inadequate reports, especially on quantum, and a willy-nilly approach to dragging people into the fray. This is because they underestimate the size of the problem in the first instance. Actually I'm being kind as Government has never tried to estimate the size of the problem, because I suspect they would rather not know.

They're going to give adjudicators investigative powers which at first sight could allow an adjudicator to create their own evidence. If this occurs it would infringe natural justice and the public policy of New Zealand. What it hopefully means is better and more proactive case management and more direct questioning of matters by the adjudicator.

They're offering a coordinated approach for multi-unit claims. Given the complexity and size of these claims, actions through the courts will remain the best route.

Their answer to "Why isn't the Government just footing the bill to fix leaky homes?" should have been, "Dr Cullen says NO". What they do say is that those who are found liable should foot the bill.

The Appeal Court decision on Sacramento may have got Government off the hook in the meantime, but where is the justice in the designer, the builder, or the Council footing the bill, when those who promoted and approved inadequate claddings and untreated timber have managed to escape largely unscathed?

The problem is that when you repair leaky buildings you not only have to address the design and construction issues, often you also have to fix the system by providing a cavity which requires replacement of the cladding.

For owners of leaky homes, the best advice I can give you is to obtain the best advice you can.

Philip O'Sullivan's experience and knowledge in weathertightness and timber decay have put him to the forefront in this difficult and vexing area. Philip is currently President of the Claddings Institute. he regularly makes presentations and writes articles for the industry on weathertightness issues. He has served on the Building Industry Authority's work group for the revision of E2/AS1 and is currently assisting with the development of a weathertightness guidance document. Philip is also on the Department of Building and Housing's Building Envelope Advisory Panel.