Bad building, not Harditex cladding, responsible for leaking homes, James Hardie tells court
Tuesday, 18 May 2021
James Hardie says its Harditex cladding system that has been linked to leaky homes was a successful product that had a low failure rate.
The building materials maker on Tuesday opened its defence in the High Court in Auckland against a $220 million class action claim for compensation by owners of leaky homes clad in Harditex.
About 1000 owners of 376 leaky homes blame James Hardie’s Harditex exterior cladding system for them leaking.
But James Hardie’s lawyer Jack Hodder, QC, told the court that as many as 100,000 buildings in New Zealand had been built using Harditex.
**READ MORE:
* James Hardie sold Harditex cladding for five years after evidence of leaking – court told
* Leaky house owners sue James Hardie because no other 'deep pockets': defence
**
“It was a very successful product with a successful performance history in the field with a low failure rate,” Hodder said.
Hodder said the leaky homes the court would scrutinise were buildings that had been badly built during a systemic failure of standards in the building industry, which had led to what has become known as the leaky building crisis.
Hodder said the leaky building crisis followed the deregulation of the building industry in the 1980s.
“There was a systemic failure in the building industry. What this case is about us an attempt to sheet that failure home to James Hardie, and that will be resisted,” Hodder said.
The homeowners suing James Hardie allege it owed them a duty of care, and knew, or should have known, its Harditex cladding system was not weathertight.
They also allege James Hardie launched Harditex without proper testing that it would remain weathertight in New Zealand’s high-rainfall climate.
Hodder said it was understandable that people who had suffered from leaky buildings, and had suffered various kinds of distress, should seek to find someone to “make an extraction from”.
James Hardie was the “last deep pocket”, Hodder said.
The case was being funded on a no-win, no-fee basis by litigation funding, he said.
Harditex was fit for purpose and well-designed, introduced after well-designed and best practice testing in Australia and New Zealand, he said.
At all times James Hardie was “an engaged and responsible” manufacturer, Hodder said.
Hodder referenced the Hunn Report from 2002 into the growing incidence of leaking buildings across the country.
The report evidenced poor building practices were behind the leaky building crisis. A single home would be built by multiple tradies, each doing a small part of the work, none of whom took overall responsibility for ensuring homes were built that did not leak, Hodder said.
The Hunn Report also found increasingly complicated home designs had also contributed to weathertightness vulnerability in homes, Hodder said.
“Innovation, it turns out, comes with a price.”
Other factors the Hunn Report identified was a decline in tradies’ skills, and the skills of building inspectors and certifiers, Hodder said.
The Hunn Report also said many homes were built by developers seeking to maximise their profits by minimising the amount they spent on construction, he said.
“Bad building skills is not a figment of anyone’s imagination.” It was well-documented at the time.”
“Whilst most buildings were being built in a weathertight manner, a minority were not,” Hodder said.
The homes before the court were ones where there was inattention to detail by both the designers and the constructors, Hodder said.
In their opening statements, the homeowners’ lawyer Simon Hughes said James Hardie had been marketing a “cladding system”.
But Hodder sought to present James Hardie as a manufacturer of cladding boards.
He said many of the components in homes clad in Harditex were supplied by others.
Hodder said product manufacturers were entitled to rely on skilled designers, and builders in order for the walls in which their products were used to stay watertight.
James Hardie was also represented by Bruce Scott who said the onus was on the homeowners to prove that Harditex was to blame.
He said the properties homeowners were using to seek to prove Harditex was a flawed product represented about 0.01 per cent of homes clad with Harditex.
It was not representative of homes clad in Harditex, Scott said.
The complaints rate about Harditex was “very, very small”, he said.
James Hardie’s lawyers will continue their opening statements on Wednesday.