Changes sought in leaky homes law

A leading legal practitioner on leaky homes wants changes to the current law to enable claimants to keep more of the settlements they are awarded and to extend the current time limit on the claims period.

Dan Parker is the principal of Parker and Associates, a specialist litigation firm in Wellington that has handled hundreds of leaky home cases.

Owners of leaky homes can pursue claims through the High Court or seek an independent assessment and mediation through the Watertight Homes Resolution Service (WHRS).

Parker's issue is costs.

"In the WHRS, the claimant gets costs only if they can prove that the other side's case lacked 'substantive merit" which is a high threshold, basically that they had no case at all.

"The other problem is that claimants have to produce expert evidence at their own expense, so the cost of that comes out of whatever settlement they get."

In the High Court the usual practice is that the losing party pays the costs of the winning party so that the successful claimant gets the full amount of their settlement.

His other beef with the WHRS is the limitation period of ten years on claims.

Owners of buildings erected between the mid 1990s throughout to 2002, when the WHRS scheme came into effect, are either out of time already or getting close to it, he said

"Unless there is a change to the ten year limitation period on claims, some claimants will find themselves without a remedy, because more cases are coming to light.

"It seems unfair to lose a claim before a building owner ever has any knowledge of a problem.

"I'd like the government to push out the time limit to at least 15 years but to limit claims to those that pass the test of reasonable discoverability.

Parker left Phillips Fox to set up his firm in 2001. He wanted to retain the best features of a larger practice: a strong team, good training in running complex litigation, and good resources and systems.

"I wanted to have a boutique firm not a sole practitioner with some staff."

Currently the firm works in insurance, construction and property, with some defamation work.

And it's now expanding to two partners and five solicitors with Johanna Drayton joining the practice at partner level and bringing in expertise in employment, medico legal and education law.

Published in the National Business Review of 22 May 2009