Representative proceedings (or “class action” proceedings) were commenced by the filing of representative statements of claim by the following representative plaintiffs as follows:
The claims are product liability claims against Studorp Ltd and James Hardie New Zealand in negligence and for breach of the Fair Trading Act 1986.
The plaintiffs allege that the leaks in their respective homes are attributable to inherent defects in the Harditex and Titan Board cladding systems manufactured by James Hardie. The plaintiffs also allege that statements made in the technical literature were false and misleading.
James Hardie denies the allegations, says its cladding systems are not defective and will be defending the claims.
The plaintiffs allege that many home owners may be affected.
In 2015 the plaintiffs applied to the High Court for orders that they be allowed to bring their proceedings in a representative capacity on behalf of a class. That application was heard in the High Court in June 2016 by the Hon Justice Rebecca Ellis.
Justice Ellis issued a judgment on 16 October 2016 and made representative orders in December 2016. A copy of the High Court’s judgment and the December 2016 Orders are available here.
The Court of Appeal dismissed James Hardie’s appeal against the High Court’s orders on 30 August 2017. A copy of the Court of Appeal’s judgment is available here. James Hardie applied for leave to appeal the decision of the Court of Appeal to the Supreme Court. The application was opposed. The Supreme Court dismissed James Hardie's application, declining to grant leave to appeal. A copy of the Supreme Court's judgment is available here.
The Court of Appeal also granted an opt-in period of five calendar months from the date of its judgment for the Harditex and Titan Board claims, replacing shorter periods granted by the High Court. Updated orders are available here.
This means more leaky-building owners will have the chance to join the class action. However, they must move quickly as the opt in period will be the last chance for most affected owners to pursue any legal action for recovery of their losses.
Claimants who join during the opt in period will not be affected by a 15-year limitation longstop that will otherwise bar many claims after the opt-in period expires.
Also, the Supreme Court confirmed last year in the leaky schools litigation that the 10 year Building Act limitation longstop does not apply to a product liability claim like this.