Brian Rudman: Cullen's jungle-law antics browbeat leaky-home victims

Someone should remind Acting Prime Minister Michael Cullen that if we'd wanted to live according to the law of the jungle, we'd have voted Act into power.

Yet I doubt even Act would have been as sadistic as the present Labour-led coalition in its hounding of 153 leaky home victims of the Sacramento complex at Botany Downs.

Not satisfied with having their claim of damages against the Government thrown out of the Court of Appeal, Dr Cullen is going for the kill and seeking up to $80,000 in court costs.

Not to do so, he says, would upset the Crown's insurers and set a precedent.

Well, so what? Isn't that what we elect governments to do when the moment is appropriate?

Of course there's a more obvious motive. To warn home-owners that if they dare persist in further appeals they risk the Crown trying to squeeze further costs out of them.

In this depressing saga this must be one of the more sickening moments.

Dr Cullen worries about setting precedents, but if he were to check he'd discover this Government has - well had - a proud history of trying to level the battlefield in David versus Goliath legal struggles.

There's the Environmental Legal Assistance Fund, introduced at the behest of the Greens, that has, since 2001, given grants of over $3 million to help groups participate in the Resource Management Act process.

Among beneficiaries have been protesting Waiuku farmers who got $33,750 to help fight state-owned Genesis Energy's plans for a local windfarm, and the noise victims of the Western Springs speedway.

If ever a group needed help, it's the people left sitting in their leaky homes when the music stopped. There's upwards of 5000 affected properties in Auckland and another 10,000 around the country.

For the past three years, owners have been appealing for help, while the culpable, to a greater or lesser extent, have sought refuge through the arcane escape hatches the law so often provides for those who can afford it.

And that includes Government agencies like the now defunct Building Industry Authority and the Standards Association of New Zealand, which together helped introduce the environment in which the epidemic of leaky homes was able to prosper.

In March the Government's so-called Weathertight Homes Resolution Service ruled that serial leaky building developers like Tim Manning could escape having to pay to fix the mess he built for two reasons. First, he'd been smart enough to liquidate the company he'd created for each development. Second, he had not "worked at the coalface" of the Ponsonby Gardens complex under investigation.

The adjudicator said: "He may have encouraged his people to cut costs, time and corners, but he never instructed his people to build in contravention of the building code."

Now the Court of Appeal has come up with the same sort of reasoning to protect the BIA. It ruled the Government's advisory body did not have sufficient proximity to the problem to have a legal duty of care.

This is the body which, among other innovations, approved the use of untreated framing timber.

In a situation where home owners and their lawyers are struggling through the legal quagmire seeking a way forward, the Sacramento case was a test case that failed.

One option now is to test this judgment in the Supreme Court. Dr Cullen's decision to seek damages acts as a dampener on that.

Leaky Homes Action group leader John Gray says that while the Government sidesteps liability, people are sitting in "leaking, rotten, poisonous homes". He wants the Government to declare a national disaster and provide compensation or assistance "to enable safe and sanitary repairs".

Sacramento lawyer Paul Grimshaw is more conciliatory with his appeal for interest-free loans so owners can ensure the problem "doesn't worsen".

Who could disagree with that? The Government's priority should be to ensure the homes are restored to a liveable state. If that means short-term interest free loans while liability is settled, then why not?

The Government should desist from persecuting home-owners and start owning up to its part in the disaster.