Leaky homes: Auckland City v. McNamara

Local councils bear no responsibility for leaky homes when developers choose to use independent building certifiers rather than paying for a council inspection. This applies even where the independent certifier has failed to comply with the prescribed rules when assessing for weather tightness. A council is not obliged to check on a registered certifier’s competence.

Litigation followed the purchase of an Auckland property after purchasers, the McNamara Family Trust, found it leaked. Built in 2004, the developer contracted Approved Building Certifiers to complete certification of the property as then required by the Building Act 1991.

After repairing leaks, the Trust sought to recover its loss suing some 18 defendants for negligence, including the Council.

The Council took legal action to be struck out of the case, saying it had no liability.

The Court of Appeal agreed. It said the Building Act gave house builders a choice between the use (in whole or in part) of a private certifier or the use (in whole or in part) of the relevant local authority. Where a private certifier is chosen, a council assumes no responsibility for the work. A council merely carries out the administrative act of recording the fact that a compliance certificate has been issued.

In this case, Approved Building was listed as an approved certifier on a register maintained by the Building Industry Authority. As from December 2002 the standard applying to weather tightness was strengthened. It was alleged that Approved Building issued a compliance certificate when the building did not comply with this tougher standard.

Auckland City v. McNamara – Court of Appeal (03.08.10)

08.10.001