The Supreme Court has released its judgment on appeal finding that the meaning of ‘built’ in section 14(a) of the Weathertight Homes Resolution Services Act 2006 (WHRSA) is aligned with the meaning behind section 393 of the Building Act 2006 relating to ‘building work’.
Section 14(a) of the WHRSA acts as a limitation provision and provides the criteria for a person making a dwellinghouse claim under that Act. The section states that to be eligible for a claim, the subject dwellinghouse must have been built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim application is made.
Previously the Courts have held that the meaning of when a dwellinghouse was ‘built’ in section 14(a) was determined primarily when it was completed to the extent required by the building consent. Usually this is at the time of a final inspection by the council. This will be before a code compliance certificate is issued.
It was previously thought that s 14(a) was not aligned with the ‘long stop’ provision in s 393 of the Building Act which provides that proceedings relating to ‘building work’ may not be brought against a person 10 years or more after the work was completed. This provision as relating to ‘building work’ specifically includes reference to the issue of code compliance.
It was thought that parliament deliberately used the term ‘built’ in the WHRSA, as opposed to the Building Act’s term ‘building work’, to narrow the commencement date for claims under the WHRSA to uphold that Act’s purpose to facilitate an alternative, speedy, and inexpensive way for homeowners to resolve leaky building claims.
However, the Supreme Court in Osbourne v Auckland Council & Anor  NZSC 67 found it inconceivable that those drafting the WHRSA intended s 14(a) to work differently from s 393 of the Building Act. Although the Court calls use of the term ‘built’ in the WHRSA ‘clumsy’, it must have been intended to be construed by reference to the expression ‘building work’ in the Building Act, which includes council certification. As such, the Supreme Court’s interpretation of s 14(a) works to exclude claims where all building work (including certification) occurred more than 10 years before application for an Assessor’s report.