High court decision: has to be seen to be believed

The recent High Court decision of Chee v Stareast (CIV 2010-404-7804 2 June2011) has important ramifications for claimants and respondents in the leaky home circus. It should also be reverberating amongst experts whose methods of investigation have not changed in over a decade despite significant advancements in this field over that time. Those of us in and around the legal profession understand that evidence is the cornerstone of any legal proceeding and opinion is secondary to evidence, always.

Last week in the High Court, Justice Faire reversed an award against a respondent and made some telling comments which must register with home owners, respondents, the Department of Building and Housing (DBH), experts and lawyers.

This case began in the Weathertight Tribunal and was heard under appeal in the High Court. Mr Browne was the government appointed assessor charged with providing a robust and accurate report on the condition of a home. As many of you know we advise our clients to carry out an analysis of the Assessor’s report. Despite it being from the government, it is, more often than not, flawed in some way and their investigation is often not as broad as clients would expect.

His Honour made the following comments:
“The adjudicator relies on the evidence of Mr Browne for her conclusion that the lack of clearance between tiles and cladding is a cause of leaking and damage. Mr Browne was contracted by the Chief Executive of the Department of Building and Housing to provide a report.
Mr Browne describes the investigation process that he followed in completing his report. He describes the invasive testing that he undertook, which involved drilling holes through the cladding and inserting proprietary probes into the concealed structure to record moisture content readings.Locations were selected by him from areas that he regarded as high risk and then non-invasive surface readings were obtained. Once the testing was carried out the holes were then filled with sealant.
In his report, it is noticeable that Mr Browne refers to the potential to enable damage in relation to the cladding taken down to the deck level only.The moisture readings to which I have made reference do not indicate that actual damage has occurred because of the fact that the cladding was taken down to the deck level.” (Emphasis added)

His honour then referred back to evidence given in the Tribunal;
“ADJUDICATOR: So is there evidence in this property that that’s happening?
MR BROWNE: It’s really a generalisation of what I’ve found previously rather than specifically on that.
ADJUDICATOR: So you can’t point to anything specific on this but you believe that’s what happening.

Justice Faire then summarised Mr Smith’s evidence on this point (expert appointed by the home owners) “Questioned further, Mr Smith acknowledged that he was making an assumption and had no factual foundation to suggest that there was any damage caused at the tile to cladding junction.”
His Honour therefore concluded that there was “no proper foundation for the proposition that the tile to cladding clearance was a cause of water penetration and damage.”
In conclusion, at least two experts (the first appointed by the Government and the second by the home owner) proceeded on this point against one of the Respondents on a combination of assumption, potential and generalisation.The produced no proof for their claims of damage. Once challenged, they crumbled on this point.
This decision supports the on-going efforts of the Moisture Detection Company and Origins Group Limited, working under the auspices of the Step Up Group, to ensure parties obtain thorough and robust analysis of homes intending entry into the Tribunal or High Court process. These companies have been urging the Department of Building and Housing (which appoints Assessors), building experts, lawyers and homeowners’ to install permanent probes and allow the collection of the four types of evidence thereby available. The Government reports are simply not robust, accurate or thorough enough to withstand challenge by any one of the various respondents to a claim.
The Tribunal is subservient to the High Court and accordingly this decision stands as a precedent for those entering the Tribunal. Our clients are protected to a greater extent than most homeowners (and the one above) because we urge our clients to carry out more extensive and scientific testing of homes and not to assume the Government Assessor has been thorough or correct.  We use unique technology, methods and computer programmes to enable a comparison of data collected to ascertain areas where damage is claimed but not yet proven. We then undertake further sampling at an independent laboratory to ensure that as much of the damage is proven as possible without removing every piece of cladding. We also limit damage to buildings.
Sadly, those building experts (and lawyers) who have chosen to ignore this technology, and who will continue to do so, will have only one option; to do even more destructive testing on the exterior of properties. The danger for their clients, is that should they remove swathes of cladding, and find no damage, they will have irreparably damaged the house. Who then, pays to repair this damage done in bad faith? Surely not the respondents or claimants?
There was a quantum leap in 2004 in the method of investigation of building condition. Claimants who rely on those who refuse to embrace this leap will be holding a candle to see the truth while those against them will be using a spotlight.
If you have any queries about this or other matters relating to the condition and maintenance of your home please do not hesitate to contact us.


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