KEY POINTS:
David Hartley is helping to change the law - and he's not happy about it.
The judge in a court case concerning the leaky home he and wife Fleur own in Eastern Beach, Auckland, ruled that the law did not allow them to claim general damages for distress
- a decision which prompted the Government to move swiftly to change the legislation.
However, the Hartleys, who cannot benefit from the impending law change, are far from happy with the system which dealt with their leaky home complaint, and are urging other owners of leaky homes to bypass the Government-established Weathertight Homes Resolution Service and take their claims straight to the High Court.
"Our mediation was just a complete joke, so we had no choice with what they offered but to go down the court avenue," Mr Hartley said.
"We were put in a situation where we had no choice but to take it to the High Court, no matter what it cost, because that adjudicator had made a wrong decision. He erred big time by finding contributory negligence, when we weren't. The judge said we weren't."
The house was four years old when the Hartleys bought it. Soon after, they had problems with leaks through cracking plaster, around window and door frames, through the balustrade, and down through a rooftop parapet.
"One night we had a massive storm and water started dripping into the lounge through the ranchslider," Mr Hartley said.
"When I started pulling the curtains back there had obviously been a little bit of water coming in. I went downstairs to get a bucket to mop it up and water was coming through a light socket in the garage. I had a look around, and found places where furniture had been strategically placed."
The Hartleys took their case to the Resolution Service in 2005, with the adjudicator ruling in April last year that repairs to the property would cost $284,000 - far short of the $600,000-plus the Hartleys had claimed.
However, he also found that Mr and Mrs Hartley - a builder and real estate agent - had not repaired damage to the house or carried out proper checks before buying it, and reduced their damages award by two-thirds for contributory negligence.
The Hartleys then went to the High Court, where Justice Stevens partially upheld their claim. In March this year the judge found the basis on which the adjudicator found the Hartleys were partly to blame for their predicament was flawed and increased the damages award by one-third - effectively doubling the amount given to the Hartleys, who now rent the house out.
Justice Stevens also said he would not interfere with the adjudicator's finding that the Hartleys should not receive general damages for mental anxiety and stress, and even if he had wanted to, he did not believe the law would allow him to. It was that finding which prompted Building Minister Clayton Cosgrove to introduce an amendment bill to Parliament to clarify that owners of leaky homes were entitled to such damages. The bill's third reading began this week.
The Hartleys remain disenchanted with the Resolution Service. "We were stuck in a government system that does absolutely nothing for citizens of New Zealand," Mr Hartley said.
"The Government system is just a complete and utter waste of taxpayers' money, wasting all this time and money on people sitting in the Weathertight Homes Resolution Service ... You guys are put into this position to help people. It quite obviously didn't, we were out of pocket a hell of a lot, we were on the verge of bankruptcy, and they couldn't care less."
Mr Cosgrove said claimants were entitled to go to court if they wished.
"That's Mr Hartley's view and he's entitled to that view, but I would note that the adjudicator awarded against him for contributory negligence, so that might colour his view."
