BuildLaw: In Brief High Court confirms Building Act 10-year longstop applies to third-party claims relating to ‘building work’ In 2013 the Ministry of Education initiated proceedings against, among others, Carter Holt Harvey (CHH) seeking damages for the costs to remove and replace the CHH cladding product, Shadowclad, in relation to about 833 leaky school buildings, which it says is a defective product, and also for the costs of consequent repairs where it is alleged the Shadowclad product allowed water ingress, causing damage to surrounding building structures. The Crown also points to potential health and safety issues arising as a result of the allegedly defective product permitting the growth of mould spores, with consequent adverse health implications. In 2016, the Supreme Court (in Carter Holt Harvey v Minister of Education [2016] NZSC, [2017] 1 NZLR 78) held that the manufacture of building products or materials is not ‘building work’ protected by the 10-year long stop which means a manufacturer of building products is not protected by the 10-year longstop and can be sued more than 10 years after the construction of a defective building. The Supreme Court emphasised the nature of the Ministry’s claim against CHH, namely a product liability claim. In doing so, it rejected CHH’s submission that at its core, the claim was a proceeding relating to building work’. The Court declined to comment on whether other parties could be sued in turn by a liable product manufacturer, leaving this point open. Following the Supreme Court’s decision, Carter Holt served contribution claims against 54 Councils in respect of 833 leaky school buildings in two separate proceedings. A large proportion of these schools were constructed more than 10 years before the proceedings had been filed by Carter Holt. The Councils applied in the High Court to set aside/strike out the claims in respect of those schools that were more than 10 years old. In a judgment released on 26 January this year, Justice Fitzgerald has confirmed that, despite product manufacturers being able to be sued outside the 10-year longstop period, the longstop provisions in the 1991 and 2004 Building Acts apply to contribution claims and those product manufacturers are not able to join parties involved in the construction of the relevant building, unless they do so within the 10-year period. The good news (at least for now) for all contractors and councils involved in carrying out ‘building work’ as that term is defined in the Building Act, is that they remain protected 10 years after the date of the act or omission alleged to have caused loss and damage.