DECISIONS

The Weathertight Homes Tribunal found that it was incumbent upon a claimant to prove that it had suffered loss.  In this instance there was a suggestion that the claimant trust had not borne the cost of repairs but rather the trustees in their personal capacity.  An adjournment was granted to allow the claimant trust to adduce the necessary proof of loss.

The tribunal reduced the claim for remedial costs from $52,064.19 to $39,012.09 on the grounds that there were items for which the claimants could not recover and an element of betterment in their claim. 

The tribunal further reduced the claim by an amount of 15% to represent its conclusion that one of the trustees had effectively acted as the head contractor. 

The tribunal apportioned responsibility between the builder and the council in accordance with traditional approach on a 80/20 percent basis. 

The Tribunal confirmed that the reference to “owner” and “ownership” in the WHRS Act 2006 refers to legal ownership only, and that equitable or beneficial owners do not have standing to bring a claim.

In May 2007, when he was the sole legal owner, Mr Dassanayake had applied to the WHRS and obtained an assessor’s report concluding he had an eligible claim.  In December 2007, as part of a bank refinance, the ownership of the property was transferred to the joint ownership of Mr and Mrs Dassanayake.  Mrs Dassanayake had lived at the property throughout the sole legal ownership of her husband and had at all times an equitable interest in the property.  In February 2010, Mr and Mrs Dassanayake applied for adjudication of the claim commenced by Mr Dassanayake in May 2007.

The issue for the Tribunal was whether the transfer from sole to joint ownership in December 2007 had terminated Mr Dassanayake’s claim by virtue of section 55 of the WHRS Act 2006, which provides that a change in the ownership of a property on or after 1 April 2007 terminates any claim made in respect of a dwellinghouse on a property by its former owner.

The claimants argued that the transfer to joint ownership did not constitute a change in ownership, as Mrs Dassanayake had at all times been an equitable owner of the property.

The Tribunal rejected the claimants’ argument and held that, for the purposes of the WHRS Act 2006, ownership referred to legal ownership only.  Therefore, the ownership of the property had changed after 1 April 2007 and, as a result, terminated the claim.

The Weathertight Homes Tribunal concluded that the claimants’ claim against the council that it had been negligent on the issue of the consent should fail as the council had reasonable grounds to be satisfied that the building would comply with the code once built if the building work was completed in accordance with the plans, specifications and technical literature referred to in the application for consent. 

However, the tribunal found that the council was liable to the claimants as a result of its failure to inspect the house properly during construction (except in respect of those allegations that the council should have noticed the wrong mix of the stucco plaster and workmanship issues in relation to its application for which it was not responsible).

The tribunal reduced the claim by the claimants for costs associated with remediating the house from $537,680 to $352,016.  The tribunal further found that because the costs that it found would represent the costs of remediating the house were comparable to the loss in value ($343,000) that in this instance it was appropriate to adopt the cost of repairs as the appropriate measure for damages.  The tribunal further rejected the claim by the claimants that once repaired the house would continue to suffer from a stigma.

Lastly, the tribunal in accordance with its previous decisions concluded that responsibility of the council ought to be limited to 20% of the amount claimed.