Lee v Whangarei District Council (SC)

Frana Divich, together with leading counsel, acted for the Whangarei District Council in respect an appeal from the judgment of the Court of Appeal brought by the owner of a leaky building whose High Court claim was found to be time barred.

The approved ground of appeal was whether, in terms of s 37 of the Weathertight Homes Resolution Services Act 2006 (the Act), the application for an assessor’s report “stopped the clock” for limitation purposes and with regard to the proceedings against the council filed in the High Court.

The Supreme Court found that the proceeding filed in the High Court was not statute-barred. The Supreme Court held that the clock had been stopped for limitation purposes when Ms Lee applied for an assessor’s report. It was not the purpose of s 37(1) to limit the concession created by the Act to proceedings under that Act. Section 37(1) did not provide that it was limited to proceedings under the Act and referred to court proceedings. An application for an assessor’s report was not an election to pursue a proceeding under the Act. The Act contemplated that claimants could pursue their proceedings other than by an application for adjudication, such as by arbitration or through the courts.

There is an advantage to councils with this judgment because the clock stops in respect of all possible parties as at the date of the assessor’s report - so parties can be joined to claims in other jurisdictions when ordinarily they might be time barred for limitation.