to the Court of Appeal. The appeal failed, except in relation to the negligent misstatement claim which was struck out.
CHH applied for leave to appeal to this Court. The respondents applied to cross-appeal in relation to the decision to strike out the negligent misstatement claim. This Court granted leave to appeal and cross-appeal on the grounds of whether the Court of Appeal was correct to conclude that the claims in negligence are arguable; that the claims in negligent misstatement are not arguable; and that the longstop limitation provision in s 393 of the Building Act 2004 does not apply to the respondents' claims against CHH.
In relation to the negligence claim, CHH argued that the claim could not succeed as there was no arguable duty of care owed by CHH to the respondents, and that to hold otherwise would cut across the contractual arrangements between the various parties to the construction of the school buildings. The respondents argued that it was at least arguable that the relationship between the parties was such that CHH owed them a duty of care.
In relation to the negligent misstatement claim, CHH argued that the respondents had not pleaded the required special relationship between CHH and them such that CHH assumed responsibility to them to take reasonable care concerning the truth of its statements about the cladding sheets and cladding systems. The respondents argued that CHH could reasonably expect that purchasers of the cladding products would rely on CHH's promotional material.
In relation to s 393 of the Building Act, CHH argued that the proceedings related to "building work" under the provision and therefore the 10-year limitation period in the Act prevented the respondents from bringing a large number of their claims. The respondents argued that the Act draws a distinction between building work and the manufacturing of building products and materials, and that, as the claim against CHH related to the latter, the limitation provision did not apply.
The Court has unanimously dismissed the appeal and allowed the cross-appeal. In relation to the claims in negligence and negligent misstatement, the Court has found that the claims are arguable and require consideration in light of proper factual findings. They should therefore be allowed to proceed to trial rather than be struck out. In relation to s 393 of the Building Act, the Court has found that the provision does not apply to claims related to defective building products and materials, which are not claims related to "building work" for the purposes of the provision. As a result, the s 393 period does not apply to the respondents' claims against CHH.
- Originally published by the Supreme Court of New Zealand Te Koti Mana Nu