The Auckland High Court delivered an interim decision where the body corporate and a number of individual proprietors and lessees of units at Sunset Terraces sued the Council, developers and the designer in negligence and sought substantial damages. They were successful against the Council and the developers, but all their claims against the designer failed.
Kevin Kilgour has been appointed as a new Member of the Weathertight Homes Tribunal and will be based in Auckland. Kevin Kilgour will join the current Members of the Tribunal in determining issues regarding leaky homes.
Note: The following descriptions apply to terms, processes and procedures within the context of the Weathertight Homes Tribunal only.
Adjudication process: The overall process (involving several stages) through which a Member of the Tribunal (the Judicial Officer) receives evidence related to the claim from all relevant persons and reaches a decision based on this evidence. (For more information, see "Tribunal process" page.)
Adjudication on papers: When a lower-value claim ($20,000 or less) cannot be resolved through mediation, the claimant may apply to the Tribunal for the matter to be adjudicated. A Member of the Tribunal will make a decision based on the documents provided by the parties, which is called 'adjudication on papers'. A preliminary conference or hearing is not conducted unless the Member decides it is required. (See also "Preliminary conference" and "Hearing" below.)
Assessment reports - Eligibility assessment report and full assessment report: Reports produced by Department of Building and Housing assessors (after a claimant first applies to the Department under the WHRS Act 2006). The claimant can choose either an eligibility report or a full report. An eligibility report states whether or not, in the assessor's opinion, the claim meets the eligibility criteria under the WHRS Act 2006. A full report addresses eligibility and also identifies actual and potential damage from leaks, necessary repairs, the cost of repairs, and the parties that the assessor considers should be involved in the claim process. A full report forms the key evidence for a claim.
Chair's Directions: Detailed and legal statement of the processes and rules for adjudication within the Weathertight Homes Tribunal. (For more information, see "Chair's Directions" page.)
Claimant: Person (or entity) bringing a claim, and the owner (or owners' representative) of the dwelling concerned. (See also "Respondent" and "Party/parties" below.)
Decision: After adjudicating a claim, a Member of the Tribunal will make a formal decision on the claim based on the evidence received and heard. The decision sets out who is responsible for the leaks, who should pay the claimant, and how much they should pay. This decision is a public document that is legally binding on all parties, is distributed to all parties, and is published in the "Decisions" section of the Tribunal's website. (Note that a "decision" is also referred to as a "determination" in the WHRS Act 2006.)
Eligibility report (See "Assessment reports" above.)
Experts' conference: Meeting of expert witnesses (which may include the Department's assessor) to clarify and confirm the technical issues to be adjudicated in a claim. (For more information, see "Key information" page.)
Full assessment report (See "Assessment reports" above.)
Filing: Formal submission of document or evidence to the Tribunal in relation to a claim.
Hearing: A judicial proceeding that is led by the Member of the Tribunal assigned to the claim, and is open to the public (unless the Member of the Tribunal directs otherwise). The purpose is for the Member to clarify and test the evidence and witness statements/reports, all of which will have been presented to the Tribunal prior to the hearing. The focus of the hearing is an inquiry by the Member, who will use an inquisitorial (questioning) process. The proceedings are recorded.
Lower-value claim: Claim of $20,000 or less in value. (See also "Adjudication on papers" above.)
Mediation: A meeting of parties outside of the adjudication process in an attempt to resolve the issues between the parties. A professional mediator independently facilitates this and the results are confidential to the parties (unless agreed otherwise). (For more information, see "Tribunal process" page.)
Preliminary conference: A meeting of all parties concerned in a claim, ordered and conducted by the Member of the Tribunal. The intent is to expedite adjudication proceedings and ensure compliance by all parties. The Member of the Tribunal confirms the details of the claim, confirms parties, confirms the matters under dispute, and sets out the schedule of activities. (For more information, see "Tribunal process" page.)
Order: A direction, procedural or final order given in writing to one or more parties by the Member of the Tribunal, which must be followed.
Party/parties: Person (or entity) who is formally named in a claim, either as a claimant or a respondent. (See also "Claimant" and "Respondent" on this page.)
Registration: Formal acceptance by the Tribunal of an application for a claim, signalling the beginning of the adjudication process at the Tribunal.
Respondent: Person (or entity) against whom a claim is being made. (See also "Claimant" and "Party/parties".)
Serving/service: Copies of all documents and evidence filed with the Tribunal to support a claim or a response to a claim that are supplied ('served') to the other parties to the claim. This 'service' is the responsibility of the party doing the filing, not the Tribunal.
Settlement: Resolution of a claim agreed between parties before the formal adjudication hearing, such as through mediation. A settlement is generally confidential.
Site visits and inspections: The assigned Member of the Tribunal may visit (inspect) the claimant's dwelling at any time during the adjudication process. This will be organised with the owner's or occupier's consent. The parties to the claim may also attend. Respondents or their expert advisers are entitled to inspect the claimant's property, but the timing and length of the inspection must be reasonable and arranged by appointment with the claimant (or their representative). If this is not possible, inspections may be arranged through the Case Manager.
Termination: Under certain circumstances (such as proceedings initiated by a claimant in a Court or Dispute Tribunal), the Tribunal may terminate a claim.
Withdrawal: A claim may be withdrawn from the adjudication process by the claimant if all the parties agree to its withdrawal (such as when a claim is settled during mediation), or if the assigned Member of the Tribunal agrees to its withdrawal. The claimant must file an 'application to withdraw' with the Tribunal.
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