Digging down into leaky homes

PRESSURE: Adina Thorn hopes to find documents held by the Auckland Council that may shed light on the leaky homes problem.
PRESSURE: Adina Thorn hopes to find documents held by the Auckland Council that may shed light on the leaky homes problem.

Leaky buildings have been a financial catastrophe for many homeowners after tens of thousands of defective houses were built in the 1990s and the 2000s.

Fixing them will cost billions of dollars, it is estimated.

Nowhere has that blow fallen more heavily than in Auckland, where most leaky homes were built.

Adina Thorn, a specialist litigation lawyer who has won settlements for leaky building owners, has been seeking Auckland Council documents going back two decades as she probes the origins of the problem.

She was stunned when the council argued in front of the Weathertight Homes Tribunal last May that it would be too costly and onerous to find the documents Thorn wanted to progress a client's case.

"They were not saying the documents don't exist. It was just too hard to meet their obligations [for legal discovery]," Thorn said.

Although the case settled, Thorn and her husband Rohan Havelock, a barrister and law lecturer at the University of Auckland, began to wonder whether documents existed within the council that would have a bearing on cases that had already been heard by the tribunal or higher courts.

Havelock began a series of Local Government Information Act requests to the council to see just what it had.

After asking when Auckland Council, or its predecessors, first knew of potential leaky home problems, he got a response from Bob de Leur, the man who was, in his own words, "the officer responsible for weathertightness".

De Leur, who was last year awarded the Insignia of an Officer of the New Zealand Order of Merit (ONZM) for services to the building industry, said: "The first reliable information received alerting to a potentially widespread weathertight problem was approximately October, November 2001."

De Leur said he undertook his investigations in November and December of 2001, and the research involved "checking of all claims received by Auckland City during the 1990s relating to weathertightness."

He claimed in his response to Havelock: "No substantive evidence could be found in my research to indicate that there was a systematic problem. We have no documentation I can provide you with to substantiate this."

Havelock said: "I was not asking only for 'reliable' information. I was asking for all information."

Annoyed by the OIA response, Havelock sent in a second request last June asking the council to provide the information he wanted.

The response was that the cost the council of getting the information would be high and too uncertain to be able to work out what charges to levy to Havelock to get it. In such cases, a council can under the OIA refuse to provide the information.

Havelock then sent a third letter in July asking when de Leur first became aware of from any source of potential "leaky building" problems in New Zealand. The response was that Bob de Leur had retired on June 27 so the council no longer held that information.

Havelock complained to the Ombudsman, but she accepted the council's argument that getting the information would involve "interviewing thousands of past and present employees of the council" to establish when they knew of problems and voiced them to senior staff, and what action was then taken. It would have to go back through a substantial archive of past emails and documents dating back "a number of years".

Thorn is frank about what she believes the council has in its possession: "I think there is a mass of documents that go back to the mid-1990s and I can't understand why they are not being released."

"I want to know how much and how early the council had this knowledge," Thorn says.

"This didn't happen overnight. These buildings were failing through the mid 1990s up until a high point in 2002 when the Government received the Hunn report."

One document the council did release to Havelock shows the council had received 52 leaky building claims before October 2002 dating back as far as 1990, and had settled 35, having paid over money in 20.

The leaky building issue had also hit the media by the late 1990s. In June 1999 The Independent Business Weekly published a front page story warning of serious concerns by the Building Research Association.

And in November 2000, a study tour of Canada and the USA was undertaken with representatives from Carter Holt Harvey, Winstone Wallboards, the Claddings Institute of New Zealand, Forest Research and the Building Research Association all going.

The report noted that the trip was a result of a forum in 1999 on leaky buildings, and that the New Zealand "problem" then identified bore "a strikingly similar pattern to what had happened in Canada and US.

Thorn and Havelock have gone public because of their concerns that cases involving Auckland Council and its predecessors have been and are still being heard in the light of too little evidence.

Fairfax Media asked the council to comment on Thorn's views.

It said: "Any suggestion by Adina Thorn that Auckland Council has failed in any way to comply with these obligations is incorrect. Auckland Council responds to LGOIMA and discovery requests on their merits and in accordance with the law, and takes its obligations on discovery extremely seriously."

Sunday Star Times