Weathertight Homes Resolution Services Act 2002 Adjudication

December 1, 2003

Godinich v GT Heng Co Ltd and Approved Building Certifiers Ltd.

This month I wish to focus upon one of the first published adjudications from the Weathertight Homes Resolution Service.

The claimants were the owners of a house in Mairangi Bay, Auckland. The house was built between January and April 2001, and they were not the first owners or occupiers. The First Respondents were the company named as Guan Thye Heng Co Limited. This company was served with all notices relating to the adjudication, but did not participate in the Adjudication. This company was the actual company that built the house. The Second Respondent was Approved Building Certifiers Limited, the company that carried out and issued the Certificate of Code Compliance at completion, the Certifier.

The following areas were identified as having possible leaks:

Dining room deck – Balustrade capping

Dining room deck – Waterproof membrane

Dining room deck – Step at External Doors

Lounge Deck – Balustrade Capping

Bedroom Deck – Balustrade Capping

Family Room – Leak in North East Corner

Window Edge Sealant

Unsealed Wall Penetrations

Vent at Chimney Enclosure

The Adjudicator reviewed the evidence and concluded that two items of leaks set out above involved construction work that did not comply with the Building Code.

Lounge Deck – Balustrade Capping.

He concluded that there was evidence of leaking through or around the balustrade capping. The top of the balustrade was flat with no slope to assist with shedding the water away from the top. There were cracks along the edge of the capping in several places, and across the top. Water was leaking into the timber framing. He concluded that the top of the balustrade had not been constructed in accordance with the finishing details shown in Section 7 of the technical information booklet issued by the manufacturers of the Harditex.

He concluded that the reconstruction work would be limited to the top of the balustrade. In terms of waterproofing the top, he concluded that the installation of a protective capping along the full length of the balustrade and ensuring proper junctions with the external walls of the house, would easily solve the water ingress problem.

Lounge Deck.

Similarly the lounge deck has balustrade capping issues. The Adjudicator concluded that this balustrade needs to have its top reconstructed.

The Adjudicator then considered the issue of liability. The Owners’ claims against both the Builder and Certifier were in negligence. In order for the Owner to succeed against either of these parties, it was necessary that the Adjudicator concluded that both parties were in breach of their duty of care to ensure that the house was properly built to the standards required by the Building Act. He then went on to state that it was well established in New Zealand that both those who build and those who inspect building work have a duty of care to building owners. He then relied upon a number of New Zealand cases on this subject.

He also commented upon the Building Act and the New Zealand Building Code. In particular he states at page 11:

“The Building Act requires all work to comply with the New Zealand Building Code, which is found in the First Schedule to the Building Regulations 1992. The Building Code contains mandatory provisions for meeting the purposes of the Act, and is performance-based. That means it says only what is to be achieved, and not how to achieve it.”

In regards to the Builder, the Adjudicator concluded that the Builder failed to ensure that the building work on this house was carried out in accordance with the requirements of the Building Code. That failure constituted a clear and equivocal breach of the duty of care owed to the Owners. The measure of damages should be the reasonable cost to repair the defects, and any consequential damage caused by the defects.

In regards to the Certifier, the Adjudicator concluded that the Certifier should have noticed that the balustrade cappings were inadequate. The Certifier had tried to argue in the adjudication that the cappings were not visible when the texture coating had been completed, and he says that it is unrealistic to make a certifier responsible for checking this type of detail.

It was concluded by the Adjudicator that the balustrade cappings were important enough for the Certifier to take steps to ensure that the under capping was in place.

Both the Builder and the Certifier were found liable as concurrent tortfeasors for a total sum of $5,000, being the costs to make the house comply with the Building Code so as to stop water ingress.