Possibility for legislative change in the wake of the Supreme Court’s Osborne decision

The Supreme Court’s decision last month in Osborne v Auckland Council & Anor [2014] NZSC 67 (read our blog post here) may have the potential for legislative change.

In the Osborne decision, the Court found that use of the word ‘built’ in s 14(a) of the Weathertight Homes Resolution Services Act 2006 (WHRSA) to specify the time limit to bring a claim under that Act has the same meaning as ‘building work’ in s 393 of the Building Act 2004. This interpretation effectively means a claim may be bought under the WHRSA up to 10 years after issue of code compliance.

Previously it was thought that time for the purposes of bringing a claim under the WHRSA started running when construction work was complete to the point required under the building consent. The Supreme Court’s decision potentially means that a number of owners of leaky buildings may have viable claims under the Act.

The Ministry of Business, Innovation, and Employment (MBIE) reportedly sent letters in response to enquiries resulting from the Osborne decision, saying that its legal interpretation is that applications under the Act are unable to be opened, despite the precedent set in the that case.

Building and Housing Minister Nick Smith is reported as saying that if the Supreme Court does not clarify this situation to allow these applications on the basis of Osborne, legislation may be introduced to do so.

Additionally, Auckland lawyer Tim Rainey has filed an application asking the Supreme Court to declare that the Osborne interpretation of ‘built’ be applied by MBIE and the Weathertight Homes Tribunal to all similar cases.

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