1: Title
This Act is the Weathertight Homes Resolution Services Act 2006.
2: Commencement
1: The following come into force on the day after the date on which this Act receives the Royal assent:
a: section 1
b: subpart 7
2: The rest of this Act comes into force on 1 May 2007, unless it is brought into force on an earlier date to be appointed by the Governor-General by Order in Council.
3: An order under this section is secondary legislation ( see Part 3 OIC 2007/21 2007-04-01 Weathertight Homes Resolution Services Act 2006 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(2) brought into force 1 April 2007 Weathertight Homes Resolution Services Act 2006 Commencement Order 2007 (SR 2007/21) Section 2(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Weathertight homes resolution services
1: Purpose, overviews, and other preliminary provisions
3: Purpose of this Act
The purpose of this Act is—
a: to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the assessment and resolution of claims relating to those buildings; and
b: to provide for certain matters relating to the provision of a package of financial assistance measures to facilitate the repair of those buildings. Section 3 substituted 23 July 2011 section 4 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
4: Overview of this Act
In general terms, this Act provides for the following matters: Purpose, overviews, and other preliminary provisions
a: subpart 1 Eligibility criteria
b: subpart 2 Types of claims in respect of multi-unit complexes
c: subpart 3 Assessment and evaluation of claims, remedies, lower-value claims, and termination of claims
d: subpart 4
i: bring a claim; and
ii: have it, and the nature of the particular problem, assessed and evaluated; and
iii: be provided with an assessor's report:
e: subpart 4 Compulsory adjudication of claims
f: subparts 5 7 8 Schedule 3 Mediation of claims
g: subpart 6 Miscellaneous provisions
h: subpart 9 Part 1 Financial assistance package
ha: Part 1A Repeals, transitional provisions, etc
i: Part 2
i: repeals the Weathertight Homes Resolution Services Act 2002
ii: makes consequential amendments; and
iii: specifies how Part 1 Weathertight Homes Resolution Services Act 2002
iv: validates certain matters in relation to the 2011 Gazette
v: deems certain claims to be eligible claims under the Act. 2002 No 47 s 4 Section 4(ha) heading inserted 23 July 2011 section 5 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Section 4(ha) inserted 23 July 2011 section 5 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Section 4(i) replaced 15 March 2016 section 6 Weathertight Homes Resolution Services Amendment Act 2016
5: Overviews of types of claims
1: A diagrammatic overview of the types of claims under this Act by owners of dwellinghouses is set out in Schedule 1
2: A diagrammatic overview of the types of claims under this Act by representatives of multi-unit complexes is set out in Schedule 2
3: The diagrams are intended as a guide only.
6: Owner claims: other relevant procedural provisions
1: Under sections 52 53
2: Under section 55
3: Under section 56
4: This section is intended as a guide only.
7: Representative claims in respect of multi-unit complexes: other relevant procedural provisions
1: Under section 23
2: Under section 26 section 19 21
3: Under section 28 section 19 21
4: Under section 29 section 19 21 section 26
5: Under sections 52 53
a: a claim in respect of a single dwellinghouse in a multi-unit complex that is not a stand-alone complex (under section 15
b: a common areas only claim (under section 17
c: a stand-alone complex claim (under section 18
6: Under section 30
a: every reference in it to a dwellinghouse included a reference to the multi-unit complex or stand-alone complex concerned; and
b: every reference in it to the owner of a dwellinghouse included a reference to the representative of the owners of the dwellinghouses in the multi-unit complex or stand-alone complex concerned; and
c: every reference in it to a party or parties included a reference to the representative of the owners of the dwellinghouses in the multi-unit complex or stand-alone complex concerned.
7: Section 24 sections 22 23 the Unit Titles Act 2010
8:
9: Under section 56
10: This section is intended as a guide only. Section 7(7) amended 20 June 2011 section 233(1) Unit Titles Act 2010 Section 7(8) repealed 20 June 2011 section 233(1) Unit Titles Act 2010
8: Interpretation
In this Act, unless the context otherwise requires,— adjudication section 62 section 120 121 approved arbitral tribunal section 2(1) arbitration section 2(1) assessor section 31 assessor's report chair section 103(4) chief executive civil proceedings
a: arbitration; and
b: for the purposes of sections 84 105 125G 125H Construction Contracts Act 2002 claim
a: has been penetrated by water because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
b: has suffered damage as a consequence of its penetration by water claimant
a: means a person—
i: who applies to the chief executive to have an assessor's report prepared in respect of a building; or
ii: whose claim is transferred to adjudication under section 120 121
b: includes a claimant's successor by operation of law company-share complex complex court of competent jurisdiction
a: a High Court; or
b: the District Court cross-lease complex damages deficiency department Disputes Tribunal the Disputes Tribunal established under section 4 dwellinghouse
a: means a building, or an apartment, flat, or unit within a building, that is intended to have as its principal use occupation as a private residence; and
b: in the case of a dwellinghouse that is a building, includes a gate, garage, shed, or other structure that is an integral part of the building; and
c: in the case of a dwellinghouse that is an apartment, flat, or unit within a building, includes a door, gate, garage, shed, or other structure that—
i: is an integral part of the building; and
ii: is intended for the exclusive use of an owner or occupier of the dwellinghouse; but
d: does not include a hospital, hostel, hotel, motel, rest home, or other institution eligibility assessor's report section 41 eligibility criteria sections 14 to 18 eligible claim section 48 section 49 full assessor's report section 42 general damages
a: cannot be objectively quantified in monetary terms; and therefore
b: are assessed and quantified in broader terms invasive testing
a: means testing—
i: to measure the moisture content of any area, component, material, or space; or
ii: to establish the extent (if any) to which any means have been used to try to accomplish particular outcomes relating to weathertightness; or
iii: to establish the presence, absence, size, extent, construction, installation, composition, or adequacy of any component or material; or
iv: to establish the presence or absence of mould or other fungal growth; or
v: to establish the extent or nature of any mould or other fungal growth; and
b: if undertaken for the purposes of any such testing, includes—
i: inserting a probe into or through any material, component, area, or space; and
ii: taking a sample of any material or component, or any substance within any area or space; and
iii: temporarily removing a part of any cladding or part of a roof, floor, deck, verandah, ceiling, or internal or external wall, or any soil, paving, or backfilling material justice provisions leaky building lower-value ceiling section 123(b) lower-value claim
a: where the owner of the dwellinghouse concerned has obtained a full assessor's report, the claim has been declared eligible, and either—
i: the work needed to make the dwellinghouse weathertight and repair the damage in respect of which the claim is brought has not been done, and the estimated cost (stated in the report) of that work is not above the lower-value ceiling; or
ii: the work needed to make the dwellinghouse concerned weathertight and repair the damage in respect of which the claim is brought has been done; and—
A: the owner holds receipts for all payments required to be made for that work; and
B: the total of the payments for which the owner holds receipts is not above the lower-value ceiling; or
b: where the owner of the dwellinghouse concerned has obtained an eligibility assessor's report, the claim has been declared eligible; and
i: the owner holds receipts for all payments required to be made for the work needed to be done to make the dwellinghouse weathertight and repair the damage in respect of which the claim is brought; and
ii: the total of the payments for which the owner holds receipts is not above the lower-value ceiling mediation mediator section 77 member section 103 mental distress
a: emotional or mental anxiety:
b: distress or stress Minister Ministry multi-unit complex
a: contains 2 or more dwellinghouses; and
b: contains 1 or more, or no, common areas; and
c: is a company-share complex, cross-lease complex, or unit title complex owner parties prescribed relevant mental distress section 50(1)(a) to (e) representative
a: for the owners of dwellinghouses in a company-share complex, means the company; and
b: for the owners of dwellinghouses in a cross-lease complex, means any person (whether one of those owners or not) authorised (whether to replace another person earlier so authorised or not) under section 19 20
c: for the owners of dwellinghouses in a unit title complex, means the body corporate (within the meaning of the Unit Titles Act 2010
d: for the owners of dwellinghouses in a stand-alone complex, despite paragraphs (a) to (c), means any person authorised (whether to replace another person earlier so authorised or not) by or under section 21 respondent Secretary stand-alone complex
a: each, or 1 or more, of the dwellinghouses contained in which is either—
i: a building containing no common areas; or
ii: part of a building consisting entirely of dwellinghouses and containing no common areas; and therefore
b: which may, but need not, contain, in addition to the 1 or more dwellinghouses to which paragraph (a) applies, either or both of the following:
i: 1 or more buildings consisting entirely of common areas:
ii: 1 or more buildings consisting of 1 or more dwellinghouses and 1 or more common areas transition date section 2(2) tribunal section 101 unit title complex Unit Titles Act 2010 working day
a: a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
ab: if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
b: the day observed in the appropriate area as the anniversary of the province of which the area forms a part; and
c: a day in the period commencing with 25 December in any year and ending with the close of 15 January in the following year. 2002 No 47 s 5 Section 8 civil proceedings amended 23 July 2011 section 6 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Section 8 court of competent jurisdiction amended 1 March 2017 section 261 District Court Act 2016 Section 8 damages inserted 29 August 2007 section 6 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 8 Disputes Tribunal amended 1 March 2017 section 261 District Court Act 2016 Section 8 general damages inserted 29 August 2007 section 6 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 8 mental distress inserted 29 August 2007 section 6 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 8 relevant mental distress inserted 29 August 2007 section 6 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 8 representative amended 20 June 2011 section 233(1) Unit Titles Act 2010 Section 8 unit title complex amended 20 June 2011 section 233(1) Unit Titles Act 2010 Section 8 working day replaced 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 8 working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013
9: How claim is brought under this Act
A person brings a claim under this Act in respect of a dwellinghouse by applying for an assessor's report in respect of it.
10: How claim becomes eligible claim
A claim has been declared eligible under this Act if the chief executive has decided under section 48 section 49
11: Act binds the Crown
This Act binds the Crown. 2002 No 47 s 6
12: Assistance and guidance for claimants and respondents
1: For all provisions of this Act, the chief executive, and for justice provisions, the Secretary, may, at whatever stage a claimant or respondent may be in the processes provided for by those provisions (or before any of those processes have begun) assist and guide him or her on those processes.
2: The assistance and guidance given may include assistance or guidance on—
a: assessor's reports, the advantages of early repair, the informal dispute resolution process, or the mediation and adjudication process:
b: other possible means of resolving a particular dispute:
c: the implications for the claim concerned if the dwellinghouse concerned has damage or deficiencies not related to weathertightness.
3: Subsection (2) does not limit subsection (1).
2: Eligibility criteria
13: Criteria for eligibility of claims for mediation and adjudication services
To be an eligible claim, a claim must, in the chief executive's opinion under section 48 section 49
a: section 14
b: section 15
c: section 16
d: section 17
e: section 18 2002 No 47 s 7
14: Dwellinghouse claim
The criteria are that the claimant owns the dwellinghouse to which the claim relates; and—
a: it was built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought; and
b: it is not part of a multi-unit complex; and
c: water has penetrated it because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
d: the penetration of water has caused damage to it.
15: Claim in respect of single dwellinghouse in multi-unit complex that is not stand-alone complex
The criteria are that the claimant owns the dwellinghouse to which the claim relates; and—
a: the dwellinghouse is part of a multi-unit complex; and
b: that complex is not a stand-alone complex; and
c: the dwellinghouse was built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought; and
d: water has penetrated the complex because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
e: the penetration of water—
i: has caused damage to the dwellinghouse; but
ii: has not caused damage to any other part of the complex.
16: Multi-unit complex claim
The criteria are that the claimant is the representative of the owners of the dwellinghouses in the multi-unit complex to which the claim relates; and—
a: the complex was built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought; and
b: water has penetrated the complex because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
c: the penetration of water has caused damage to the complex.
17: Common areas only claim
The criteria are that the claimant is the representative of the owners of the dwellinghouses in the multi-unit complex to which the claim relates; and—
a: a common area in the complex was built (or alterations giving rise to the claim were made to it) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought; and
b: water has penetrated the complex because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
c: the penetration of water—
i: has caused damage to the common area; but
ii: has not caused damage to any dwellinghouse in the complex.
18: Claim in respect of 1 or more dwellinghouses in stand-alone complex
The criteria are that the claimant is the representative of the owner or owners of the dwellinghouse or dwellinghouses (being a dwellinghouse or dwellinghouses in a stand-alone complex) to which the claim relates; and—
a: the dwellinghouse, or each of the dwellinghouses, is either—
i: a building containing no common areas; or
ii: part of a building consisting entirely of dwellinghouses and containing no common areas; and
b: the dwellinghouse, or each of the dwellinghouses, is either—
i: a dwellinghouse that is a separate building; or
ii: a dwellinghouse that is part of a building consisting entirely of dwellinghouses all of whose owners are, or are some of, the owners bringing the claim; and
c: the dwellinghouse or dwellinghouses were built (or alterations giving rise to the claim were made to it or them) before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought; and
d: water has penetrated the complex because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
e: the penetration of water—
i: has caused damage to the dwellinghouse or dwellinghouses; but
ii: has not caused damage to any common area in the complex.
3: Procedure for representative claims in respect of multi-unit complexes
Types of claims in respect of multi-unit complexes
19: Representative claims in respect of dwellinghouses in multi-unit complexes
The representative of some or all of the owners of dwellinghouses in a multi-unit complex may bring a claim under this Act in respect of those dwellinghouses, and any common areas, as if those dwellinghouses and areas were a single dwellinghouse, and as if the representative were its owner, if—
a: each owner has given the representative a written notice—
i: authorising the representative to bring and resolve a claim; and
ii: authorising invasive testing by an assessor relating to the owner's dwellinghouse; and
b: the owners together own at least 75% of the dwellinghouses in the complex; and
c: subsection (1), (2), or (3) (as the case requires) of section 22
d: the representative (or, if the representative is a body corporate, an officer or member of the representative) attaches to the application for an assessor's report—
i: a written notice authorising invasive testing by an assessor relating to any common areas in the complex; and
ii: a statutory declaration that paragraphs (a) and (b), and subsection (1), (2), or (3) (as the case requires) of section 22
20: Representative claims in respect of common areas only in multi-unit complexes
The representative of some or all of the owners of dwellinghouses in a multi-unit complex may bring a claim under this Act in respect of any common areas as if those areas were a single dwellinghouse, and as if the representative were its owner, if—
a: subsection (1), (2), or (3) (as the case requires) of section 22
b: the representative (or, in the case of a body corporate, an officer or member of the representative) attaches to the application for an assessor's report—
i: a written notice authorising invasive testing by an assessor relating to those areas; and
ii: a statutory declaration that subsection (1), (2), or (3) (as the case requires) of section 22
21: Representative claims in respect of dwellinghouses in stand-alone complexes
1: The representative of some or all of the owners of 1 or more dwellinghouses in a stand-alone complex may bring a claim under this Act in respect of those dwellinghouses if—
a: each of those dwellinghouses is either—
i: a building containing no common areas; or
ii: part of a building consisting entirely of dwellinghouses and containing no common areas; and
b: each of those dwellinghouses is either—
i: a dwellinghouse that is a separate building; or
ii: a dwellinghouse that is part of a building consisting entirely of dwellinghouses all of whose owners are, or are some of, the owners bringing the claim; and
c: each owner has given the representative a written notice—
i: authorising the representative to bring and resolve a claim (unless the person concerned is taken to be the representative under subsection (2), in which case that kind of authorisation is not required); and
ii: authorising invasive testing by an assessor relating to the owner's dwellinghouse.
2: A person is taken to be the representative of the owner of 1 or more dwellinghouses in a stand-alone complex for the purpose of a claim under this section (without any written authorisation under subsection (1)(c)(i) or section 27(1)(b)(i) or (2)(b)(i)
a: each dwellinghouse in respect of which the claim is made is owned by that owner; and
b: the person is that owner or, if that owner is a body corporate, a member or officer of that body corporate.
3: This Act, with all necessary modifications, applies to a claim under subsection (1) in respect of 2 or more dwellinghouses as if those dwellinghouses were a single dwellinghouse owned by the owner or owners concerned. Authorising and making decisions on claim under section 19 or 20
22: How authority to bring representative claims in respect of dwellinghouses in multi-unit complexes to be obtained
1: In the case of a company-share complex, a claim cannot be brought under section 19 20
a: 80% of the persons entitled to vote:
b: the percentage of the persons entitled to vote—
i: that is provided for in the company's constitution; or
ii: that the company's constitution has, in some other way, the effect of requiring.
2: In the case of a cross-lease complex, a claim cannot be brought under section 19 20
a: the owners of at least 80% of the dwellinghouses in the complex; or
b: if the lease documents relating to those dwellinghouses contain provisions to the effect that the owners of at least an identifiable percentage of the dwellinghouses in the complex must authorise actions of a kind that include those actions, at least the lower of the following:
i: the owners of 80% of the dwellinghouses in the complex:
ii: the owners of the identifiable percentage of the dwellinghouses in the complex.
3: In the case of a unit title complex, a claim cannot be brought under section 19 20 Unit Titles Act 2010
4: The actions referred to in subsections (1) to (3) are—
a: to bring and resolve a claim under this Act relating to the multi-unit complex concerned; and
b: to take other actions incidental to bringing, running, or settling the claim; and
c: to authorise invasive testing by an assessor relating to the common areas of that multi-unit complex.
5: The taking of the actions stated in subsection (1), (2), or (3) is authority enough for the representative concerned to take the actions stated in subsection (4).
6: Subsection (5) overrides anything to the contrary in—
a: the constitution of a flat-owning or office-owning company; or
b: the lease of any dwellinghouse in a cross-lease complex.
c: Section 22(3) substituted 20 June 2011 section 233(1) Unit Titles Act 2010 Section 22(6)(c) repealed 20 June 2011 section 233(1) Unit Titles Act 2010
23: How administrative decisions relating to representative claims in respect of multi-unit complexes to be made
1: In this section, administrative decision section 19 20
2: If the representative bringing a claim under section 19 20 Unit Titles Act 2010
3:
4:
5: To the extent (if any) that an administrative decision must be made by a representative in accordance with any lease or licence, it must be made in accordance with the lease or licence as modified by subsections (6) and (7).
6: A body of persons acting under a lease or licence can make an administrative decision by the affirmative vote of at least the lower of the following:
a: 80% of the persons who are entitled to vote:
b: the percentage of the persons acting under the lease or licence who are entitled to vote—
i: that is provided for in the lease or licence; or
ii: that the lease or licence has, in some other way, the effect of requiring.
7: Subsection (6) overrides anything to the contrary in—
a: the constitution of a flat-owning or office-owning company; or
b: the lease of, or any licence relating to, any dwellinghouse in a cross-lease complex. Section 23(2) substituted 20 June 2011 section 233(1) Unit Titles Act 2010 Section 23(3) repealed 20 June 2011 section 233(1) Unit Titles Act 2010 Section 23(4) repealed 20 June 2011 section 233(1) Unit Titles Act 2010 Section 23(7) substituted 20 June 2011 section 233(1) Unit Titles Act 2010
24: Act does not generally limit or affect certain matters
The provisions of this Act (other than those of sections 22(6) 23(7)
a: any obligation of the body corporate or body corporate committee, procedural or otherwise, under any enactment other than this Act, or under any body corporate operational rules made under the Unit Titles Act 2010
b:
c: any obligation of any person, procedural or otherwise,—
i: under any enactment other than this Act relating to leases or licences; or
ii: under any lease or licence. Section 24(a) substituted 20 June 2011 section 233(1) Unit Titles Act 2010 Section 24(b) repealed 20 June 2011 section 233(1) Unit Titles Act 2010
25: Voting provisions not to affect validity of unit title rules
Section 25 repealed 20 June 2011 section 233(1) Unit Titles Act 2010 Changes in owners involved in claim under section 19 or 21
26: Adding further owners to representative claims in respect of multi-unit complexes or stand-alone complexes
1: Before adjudication of a claim under section 19 21 section 27(1)
2: After adjudication of a claim under section 19 21 section 27(2)
3: The owner of a dwellinghouse in the stand-alone complex concerned must not be added under subsection (1) or (2) to a claim under section 21
4: If an assessor's report relating to the multi-unit complex or stand-alone complex concerned has already been completed when the owner is added then, having regard to the claim concerned and any evidence already obtained, the chief executive may do, or the tribunal may request the chief executive to do, one of the following:
a: have a further assessment done, and provide an addendum to the original assessor's report; or
b: proceed without having a further assessment done.
27: How addition under section 26(1) or (2) effected
1: To add the owner of a dwellinghouse in a multi-unit complex or stand-alone complex to a claim in respect of the complex under section 26(1)
a: a written notice that the owner wishes the claim to extend to his or her dwellinghouse; and
b: a copy of a written notice from the owner—
i: authorising the representative to take action (unless the person concerned is taken to be the representative under section 21(2)
ii: authorising invasive testing by an assessor relating to the owner's dwellinghouse.
2: To add the owner of a dwellinghouse in a multi-unit complex or stand-alone complex to a claim in respect of the complex under section 26(2)
a: apply to the tribunal, in writing, and in a form (if any) approved for the purpose by the chief executive of the Ministry after consultation with section 26(2)
b: give the tribunal a copy of a written notice from the owner—
i: authorising the representative to take action (unless the person concerned is taken to be the representative under section 21(2)
ii: authorising invasive testing by an assessor relating to the owner's dwellinghouse; and
c: obtain the tribunal's consent under section 26(2) Section 27(2)(a) amended 29 October 2019 section 324 Tribunals Powers and Procedures Legislation Act 2018
28: Withdrawal of authority
1: The owner of a dwellinghouse in a multi-unit complex may at any time, by written notice to the representative concerned, withdraw the owner's authority under subparagraphs (i) and (ii) of section 19(a)
2: The owner of a dwellinghouse in a stand-alone complex may at any time, by written notice to the representative concerned, withdraw the owner's authority under subparagraphs (i) and (ii) of section 21(1)(c)
3: The withdrawal of the authority does not affect the ability of the representative to proceed with the claim concerned.
4: The effect of the withdrawal of the authority is that the claim—
a: ceases to relate to the dwellinghouse concerned; but
b: may proceed in respect of the other dwellinghouses to which it relates.
5: Within 5 working days of being notified of the withdrawal of an owner's authority, a representative must give written notice of the withdrawal—
a: to the chief executive, if adjudication has not been initiated; or
b: to the tribunal and all parties, if adjudication has been initiated.
29: Notifying changes of ownership after claim brought in respect of dwellinghouses in multi-unit complex or stand-alone complex
1: Within 5 working days of becoming aware of a change in the ownership of a dwellinghouse to which a claim under section 19 21
a: to the chief executive, if adjudication has not been initiated; or
b: to the tribunal and all parties, if adjudication has been initiated.
2: The effect of a change in the ownership of a dwellinghouse to which a claim under section 19 21
a: the claim may proceed in respect of the other dwellinghouses to which it relates; and
b: the new owner may be added to the claim under section 26
3: Subsection (2)(b) is subject to subsections (1) to (3) of section 26
4: For the purposes of this section, a change in the ownership of a dwellinghouse arising out of an agreement for its sale and purchase occurs on the day on which the sale and purchase is settled.
5: Change in the ownership of a dwellinghouse
a: does not include a change of that kind occurring by operation of law; and
b: if the dwellinghouse is property subject to a trust, does not include a change in the trustee or trustees; and
c: if the dwellinghouse is owned by a company (whether the company owns other dwellinghouses within the building concerned or not), does not include a change in shareholding that results in control of the company passing to 1 or more different persons. How Act applies to claims under section 19, 20, or 21
30: Application of Act to representative claims in respect of multi-unit complexes or stand-alone complexes
For the purposes of a claim under section 19 20 21
a: every reference in it to a dwellinghouse included a reference to the multi-unit complex or stand-alone complex concerned; and
b: every reference in it to the owner of a dwellinghouse included a reference to the representative of the owners of the dwellinghouses in the multi-unit complex or stand-alone complex concerned; and
c: every reference in it to a party or parties included a reference to the representative of the owners of the dwellinghouses in the multi-unit complex or stand-alone complex concerned.
4: Assessment and evaluation of claims, remedies, lower-value claims, and termination of claims
Assessment and evaluation of claims
31: Assessors
1: The chief executive must employ or engage persons to prepare reports on claims.
2: The chief executive must employ or engage only persons that, in the chief executive's opinion, are suitable to be appointed as assessors, having regard to their knowledge, skills, and experience. 2002 No 47 s 8
32: Application for assessor's report
1: An owner of a dwellinghouse who wishes to bring a claim in respect of it may apply to the chief executive—
a: to have an assessor's report prepared in respect of it; or
b: to have an assessor's report that was prepared in respect of it on the application of a former owner approved as suitable for the owner's claim.
2: On receiving an application under subsection (1)(a) or (b) that complies with all applicable requirements in sections 34 to 36
3: If the chief executive considers that the information does indicate that the claim meets or is capable of meeting those criteria, the chief executive must arrange for an assessor's report to be prepared on the claim.
4: If the chief executive does not consider that the information indicates that the claim meets or is capable of meeting those criteria, the chief executive must—
a: decline to arrange for an assessor's report to be prepared; and
b: advise the claimant of that decision and the reasons for it. 2002 No 47 s 9
33: Restriction if assessor's report prepared for claim brought in respect of dwellinghouse by former owner
1: An owner of a dwellinghouse in respect of which an assessor's report has already been prepared in relation to a claim brought in respect of the dwellinghouse by a former owner must not apply to the chief executive under section 32(1)(a)
a: the owner or some former owner has applied to the chief executive under section 32(1)(b)
b: the chief executive has refused to approve the assessor's report already prepared as suitable for the owner's or former owner's claim.
2: This section overrides section 32(1)(a)
34: Requirements for application under section 32(1)(a)
1: An application under section 32(1)(a)
a: must be in the approved form (if any); and
b: must be accompanied by all permissions necessary to enable an assessor to inspect the inside and outside of the building concerned, and to conduct any testing (invasive or not) he or she considers necessary, at a time reasonably convenient to him or her; and
c: in the case of a claim that satisfies the criteria in section 15 section 36(a)
d: in the case of a claim that satisfies the criteria in section 17 section 36(b)
e: in the case of a claim that satisfies the criteria in section 18 section 36(c)
2: Paragraphs (a) to (e) of subsection (1) apply, subject to subsection (3), to both—
a: full assessor's reports; and
b: eligibility assessor's reports.
3: Paragraphs (c) to (e) of subsection (1) do not apply to a full assessor's report in respect of a claim if an eligibility assessor's report in respect of the claim has already been prepared.
35: Requirements for application under section 32(1)(b)
An application under section 32(1)(b)
a: must be in the approved form (if any); and
b: must be accompanied by the prescribed fee (if any); and
c: in the case of a claim that satisfies the criteria in section 15 section 36(a)
d: in the case of a claim that satisfies the criteria in section 17 section 36(b)
e: in the case of a claim that satisfies the criteria in section 18 section 36(c)
36: Statutory declarations required
Sections 34(1)(c) to (e) 35(c) to (e)
a: in the case of a claim that satisfies the criteria in section 15
i: to the best of his or her knowledge, the penetration of water concerned has not caused damage to any common area, or any other dwellinghouse, in the multi-unit complex concerned; and
ii: he or she does not suspect, and knows of no reason for suspecting, that the penetration of water concerned has caused damage to any common area, or any other dwellinghouse, in that complex; and
b: in the case of a claim that satisfies the criteria in section 17
i: to the best of his or her knowledge, the penetration of water concerned has not caused damage to any dwellinghouse in the multi-unit complex concerned; and
ii: he or she does not suspect, and knows of no reason for suspecting, that the penetration of water concerned has caused damage to any dwellinghouse in that complex; and
c: in the case of a claim that satisfies the criteria in section 18
i: to the best of his or her knowledge, the penetration of water concerned has not caused damage to any common areas in the stand-alone complex concerned; and
ii: he or she does not suspect, and knows of no reason for suspecting, that the penetration of water concerned has caused damage to any common areas in that complex.
37: Application of
Limitation Act 2010
1: For the purposes of the Limitation Act 2010 section 32(1)
2: This section is subject to sections 54 133 141 146 152 155 2002 No 47 s 55 Section 37 heading amended 1 January 2011 section 58 Limitation Act 2010 Section 37(1) amended 1 January 2011 section 58 Limitation Act 2010
38: Assessor's reports are eligibility reports or full reports
An assessor's report may be an eligibility assessor's report or a full assessor's report.
39: Assessor's reports not to be done in certain cases
1: No full assessor's report may be done in respect of a claim if all damage to the dwellinghouse concerned has been repaired and it has been made weathertight.
2: No eligibility assessor's report may be done in respect of a claim if a full assessor's report has previously been applied for (or, before the transition date, an assessor's report has been applied for) in respect of the same claim.
3: This section overrides section 32(3)
40: Eligibility report does not generally prevent claimant applying for and obtaining full report on same claim
1: Obtaining an eligibility assessor's report stating that, in the assessor's opinion, the claim to which it relates meets the eligibility criteria does not prevent a claimant from later applying for and obtaining a full assessor's report in respect of the same claim.
2: This section is subject to section 39
41: Eligibility assessor's report
1: An eligibility assessor's report is a report stating only—
a: whether or not, in the assessor's opinion, the claim to which it relates meets the eligibility criteria; and
b: the matters required by subsections (2) to (4).
2: An eligibility assessor's report for a claim that satisfies the criteria in section 15
a: whether or not the assessor suspects that the penetration of water concerned has caused damage to any common area, or any other dwellinghouse, in the multi-unit complex concerned; and
b: any grounds the assessor has for suspecting that the penetration of water concerned has caused damage to any common area, or any other dwellinghouse, in that complex.
3: An eligibility assessor's report for a claim that satisfies the criteria in section 17
a: whether or not the assessor suspects that the penetration of water concerned has caused damage to any dwellinghouse in the multi-unit complex concerned; and
b: any grounds the assessor has for suspecting that the penetration of water concerned has caused damage to any dwellinghouse in that complex.
4: An eligibility assessor's report for a claim that satisfies the criteria in section 18
a: whether or not the assessor suspects that the penetration of water concerned has caused damage to any common areas in the stand-alone complex concerned; and
b: any grounds the assessor has for suspecting that the penetration of water concerned has caused damage to any common areas in that complex. 2002 No 47 s 10(1)
42: Full assessor's report
1: A full assessor's report is a report stating—
a: the matters required by section 41(1)
b: if, and only if, in the assessor's opinion, the claim to which it relates meets the eligibility criteria, the matters required by subsections (2) to (4).
2: If the report states that the claim meets the criteria in section 14 15 18
a: why water penetrated the dwellinghouse concerned; and
b: the nature and extent of the damage caused by the water penetrating the dwellinghouse; and
c: the work needed to repair the damage; and
d: the work needed to make the dwellinghouse weathertight (both in relation to the deficiencies that enabled the damage to occur and in relation to any deficiencies that are likely in future to enable damage to be caused to the dwellinghouse by water penetrating it); and
e: the estimated cost of the work referred to in paragraphs (c) and (d); and
f: the persons who should be parties to the claim.
3: If the report states that the claim meets the criteria in section 16
a: why water penetrated the multi-unit complex concerned; and
b: the nature and extent of the damage caused by the water penetrating the multi-unit complex (whether damage to dwellinghouses or damage to common areas, but not including damage to parts of the complex that are neither a dwellinghouse nor a common area); and
c: the work needed to repair the damage; and
d: the work needed to make weathertight the dwellinghouses and common areas in the multi-unit complex (both in relation to the deficiencies that enabled the damage to occur and in relation to any deficiencies that are likely in future to enable damage to be caused to dwellinghouses or common areas by water penetrating them); and
e: the estimated cost of the work referred to in paragraphs (c) and (d); and
f: the persons who should be parties to the claim.
4: If the report states that the claim meets the criteria in section 17
a: why water penetrated the multi-unit complex concerned; and
b: the nature and extent of the damage to common areas caused by the water penetrating the multi-unit complex; and
c: the work needed to repair the damage; and
d: the work needed to make weathertight the common areas in the multi-unit complex (both in relation to the deficiencies that enabled the damage to occur and in relation to any deficiencies that are likely in future to enable damage to be caused to common areas by water penetrating them); and
e: the estimated cost of the work referred to in paragraphs (c) and (d); and
f: the persons who should be parties to the claim. 2002 No 47 s 10(1)
43: Full report does not cover eligibility of claim if eligibility report obtained states that claim is eligible
If a claimant has already obtained an eligibility assessor's report stating that, in the assessor's opinion, the claim to which it relates meets the eligibility criteria, a full assessor's report in respect of the same claim—
a: must—
i: state only the assessor's view on the matters set out in subsection (2), (3), or (4) (as the case requires) of section 42
ii: have a copy of the eligibility assessor's report attached to it; and
b: has effect as a report complying with section 42
44: Copy of assessor's report must be given to claimant
When an assessor's report is completed, the chief executive must give a copy to the claimant. 2002 No 47 s 10(2)(a)
45: Claimant may make submission on assessor's report stating that claim does not meet eligibility criteria
Within 20 working days after receiving the copy of an assessor's report stating that, in the assessor's opinion, the claim to which it relates does not meet the eligibility criteria, the claimant may make a submission on it to the chief executive so the chief executive can make his or her evaluation decision under section 48 2002 No 47 s 10(3)
46: Assessor who suspects claim must be terminated must advise chief executive and cease preparing report
1: This section applies to an assessor preparing a full assessor's report in respect of a claim for which an eligibility assessor's report has already been prepared if the assessor suspects that—
a: penetration of water has caused damage to other parts of the multi-unit complex concerned; and
b: the damage of that kind will or may affect whether the claim is an eligible claim.
2: The assessor must advise the chief executive of the assessor's suspicions, and not complete the full assessor's report unless the chief executive advises that section 52
47: Assessment may be abandoned if inspection and testing not possible
1: If an assessor has been unable to inspect the inside and outside of the dwellinghouse or building concerned, and to conduct any testing (invasive or not) he or she considers necessary, at a time reasonably convenient to him or her (whether because the permissions provided are inadequate or have been withdrawn, or for any other reason), the chief executive may authorise him or her—
a: to abandon the assessment process until the necessary inspection and testing can be done; or
b: in the case of a claim under section 19 21
2: An authorisation under subsection (1)(b) has the effect that the claim concerned—
a: ceases to relate to the dwellinghouse or building in relation to which the chief executive has authorised the assessor concerned to abandon the assessment process; but
b: may proceed in respect of the other dwellinghouses or buildings (or both) to which it relates.
48: Chief executive to evaluate assessor's reports
1: The chief executive must evaluate every assessor's report (other than a full assessor's report made in respect of a claim that was held to meet the eligibility criteria when an eligibility assessor's report was evaluated), and decide whether the claim to which it relates meets the eligibility criteria.
2: In evaluating the report, the chief executive must consider only the report itself and any submission made by the claimant under section 45
3: The chief executive must give the claimant written notice stating—
a: the chief executive's decision as to whether or not the claim meets the eligibility criteria; and
b: if the chief executive has decided that the claim does not meet those criteria, his or her reasons for that decision. 2002 No 47 s 12(1)–(3)
49: Reconsideration of chief executive's decision
1: Within 20 working days of receiving notice under section 48(3)
a: asking for the decision to be reconsidered; and
b: making any supporting submissions the claimant wishes to make on the claim's compliance with the eligibility criteria.
2: If the claimant writes to the chair asking for the decision to be reconsidered, the chair must decide whether or not the claim meets the eligibility criteria.
3: The chair must give the claimant and the chief executive written notice stating—
a: the chair's decision as to whether or not the claim meets the eligibility criteria; and
b: the chair's reasons for that decision.
4: If the chair decides that the claim meets the eligibility criteria, his or her decision replaces that of the chief executive. 2002 No 47 s 12(4)–(6) Remedies that may be sought by claimants
50: What remedies may be claimed
1: As long as it is an eligible claim, a claim under this Act may be for any remedy that could be claimed in a court of law in relation to, or for consequences of, all or any of the following:
a: deficiencies that enabled the penetration of water into the building concerned:
b: the penetration of water into the building concerned:
c: damage or loss of value caused by the penetration of water into the building concerned:
d: loss of value caused by the fact that there are deficiencies in the building concerned:
e: deficiencies that are likely in future to enable the penetration of water into the building concerned.
2: Remedy
3: Subsections (1) and (2)
a: are not limited or affected by subsection (2)(d), (3)(d), or (4)(d) of section 42
b: are subject to section 91 Section 50 substituted 29 August 2007 section 7 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Lower-value claims
51: Overview of procedures for lower-value claims
1: Under section 80(2)
a: the claimant has applied to the chief executive in the manner required by that subsection for lower-value claims dispute resolution assistance; and
b: no application has yet been made to the tribunal to have the claim adjudicated.
2: Under section 60(7)
a: applied under section 80(2)(a)
b: received from the chief executive a certificate that he or she is satisfied that the claimant has made reasonable attempts to resolve the claim under the lower-value claims dispute resolution assistance process.
3: Under section 83 section 82
4: Section 58
5: Under section 59
a: requirements to deal with the claim on the papers and not to hold a hearing or a preliminary conference, unless it is for some reason appropriate or necessary to hold one; and
b: a restriction on the tribunal approving the referral of the claim to mediation.
6: Under section 90(5)
7: This section is intended as a guide only. Termination of claims
52: Chief executive must terminate certain claims if situation alters
1: This subsection applies to a claim brought in respect of a dwellinghouse in a multi-unit complex if—
a: it satisfies the criteria in section 15
b: after it is declared eligible and before adjudication has been initiated,—
i: a claim is brought in respect of another dwellinghouse, or common areas, in the complex; or
ii: the chief executive is satisfied that it is likely that water penetrating the complex because of some aspect of its design, construction, or alteration, or of the materials used in its construction or alteration, has damaged 1 or more other dwellinghouses, or common areas, in the complex.
2: This subsection applies to a claim brought in respect of a multi-unit complex if—
a: it satisfies the criteria in section 17
b: after it is declared eligible and before adjudication has been initiated,—
i: a claim is brought in respect of a dwellinghouse in the complex; or
ii: the chief executive is satisfied that it is likely that water penetrating the complex because of some aspect of its design, construction, or alteration, or of the materials used in its construction or alteration, has damaged 1 or more dwellinghouses in the complex.
3: This subsection applies to a claim brought in respect of a dwellinghouse or dwellinghouses in a stand-alone complex if—
a: it satisfies the criteria in section 18
b: after it is declared eligible and before adjudication has been initiated,—
i: a claim is brought in respect of a common area in the complex; or
ii: the chief executive is satisfied that it is likely that water penetrating the complex because of some aspect of its design, construction, or alteration, or of the materials used in its construction or alteration, has damaged 1 or more common areas in the complex.
4: If subsection (1), (2), or (3) applies to a claim, the chief executive must terminate it.
5: The termination of a claim under subsection (4) does not prevent—
a: the bringing of any claim under section 19
b: the adding of the owner of a dwellinghouse to some other claim under section 26
53: Tribunal must terminate claims in certain circumstances
1: This subsection applies to a claim brought in respect of a dwellinghouse in a multi-unit complex if—
a: it satisfies the criteria in section 15
b: after adjudication has been initiated,—
i: a claim is brought in respect of another dwellinghouse, or common areas, in the complex; or
ii: the tribunal is satisfied that it is likely that water penetrating the complex because of some aspect of its design, construction, or alteration, or of the materials used in its construction or alteration, has damaged 1 or more other dwellinghouses, or common areas, in the complex.
2: This subsection applies to a claim brought in respect of a multi-unit complex if—
a: it satisfies the criteria in section 17
b: after adjudication has been initiated,—
i: a claim is brought in respect of a dwellinghouse in the complex; or
ii: the tribunal is satisfied that it is likely that water penetrating the complex because of some aspect of its design, construction, or alteration, or of the materials used in its construction or alteration, has damaged 1 or more dwellinghouses in the complex.
3: This subsection applies to a claim brought in respect of a dwellinghouse or dwellinghouses in a stand-alone complex if—
a: it satisfies the criteria in section 18
b: after adjudication has been initiated,—
i: a claim is brought in respect of a common area in the complex; or
ii: the tribunal is satisfied that it is likely that water penetrating the complex because of some aspect of its design, construction, or alteration, or of the materials used in its construction or alteration, has damaged 1 or more common areas in the complex.
4: If subsection (1), (2), or (3) applies to a claim, the tribunal—
a: must—
i: notify the claimant that it intends to terminate the claim; and
ii: notify the claimant of the grounds (as stated in paragraph (b) of that subsection) on which it intends to terminate the claim; and
iii: notify the claimant that he or she has a reasonable time within which to comment on whether the tribunal is justified in being satisfied of the matter stated in paragraph (b)(ii) of that subsection; and
iv: consider any comments made by the claimant within a reasonable time of being notified under subparagraph (iii); and
b: if still satisfied of the matter stated in paragraph (b)(ii) of that subsection, must terminate the claim.
5: The termination of a claim under subsection (4) does not prevent the bringing of any claim under section 19 section 26
54: Application of section 37 if claim terminated under section 52(4) or 53(4)
1: This section applies if, within 1 year after the termination under section 52(4) 53(4)
a: a claim is brought under section 19
b: an owner of the dwellinghouse in respect of which the terminated claim was brought is added to a claim under section 19
2: Section 37 section 19
55: Termination of claim where ownership changes
1: A change in the ownership of a dwellinghouse on or after the transition date terminates any claim made in respect of that dwellinghouse alone by its former owner.
2: For the purposes of this section, a change in the ownership of a dwellinghouse arising out of an agreement for its sale and purchase occurs on the day on which the sale and purchase is settled.
3: Change in the ownership of a dwellinghouse
a: does not include a change of that kind occurring by operation of law; and
b: if the dwellinghouse is property subject to a trust, does not include a change in the trustee or trustees; and
c: if the dwellinghouse is owned by a company (whether the company owns other dwellinghouses within the building concerned or not), does not include a change in shareholding that results in control of the company passing to 1 or more different persons.
56: Termination of claims not pursued
1: The chief executive may, if he or she believes that a claimant who has not yet applied to the tribunal to have a claim adjudicated is not making enough effort to resolve it, give the claimant written notice that the chief executive will terminate it unless within 20 working days (or any longer period stated in the notice) the claimant either—
a: satisfies the chief executive that enough effort to resolve it is being made; or
b: applies to the tribunal to have it adjudicated.
2: The chief executive may terminate a claim unless within 20 working days (or any longer period stated in the notice) after receiving a notice under subsection (1), the claimant either—
a: satisfies the chief executive that enough effort to resolve it is being made; or
b: applies to the tribunal to have the claim adjudicated.
3: If a claim is terminated under subsection (2), no further claim may be brought under this Act in respect of the dwellinghouse (or common areas or multi-unit complex) concerned by the claimant or by his or her successor by operation of law.
4: However, if a claim is terminated under subsection (2) in respect of a dwellinghouse in a multi-unit complex, subsection (3) does not prevent—
a: a claim from being brought under this Act in respect of that multi-unit complex; or
b: a claim brought under this Act in respect of that multi-unit complex from including that dwellinghouse.
5: Adjudication of claims
Nature of adjudication proceedings, and aims and procedure for lower-value claims
57: Adjudications to be managed to achieve purpose of Act
1: The tribunal must manage adjudication proceedings in a manner that tends best to ensure that they are speedy, flexible, and cost-effective; and, in particular, must—
a: encourage parties where possible to work together on matters that are agreed; and
b: use, and allow the use of, experts and expert evidence only where necessary; and
c: try to use conferences of experts to avoid duplication of evidence on matters that are or are likely to be agreed; and
d: try to prevent unnecessary or irrelevant evidence or cross-examination.
2: In managing adjudication proceedings, the tribunal must comply with the principles of natural justice.
3: Subsection (2) does not require the tribunal to permit the cross-examination of a party or person; but the tribunal may in its absolute discretion do so.
58: Aims in relation to adjudication of lower-value claims
1: The tribunal must try to achieve the following aims in relation to the adjudication of a lower-value claim:
a: ensure that the process is much faster, simpler, and cheaper than the adjudication of a claim that is not a lower-value claim:
b: minimise the involvement of lawyers and other representatives:
c: keep the cost of the process at a level appropriate to the amount of the claim:
d: handle procedural issues (like joining parties) quickly and efficiently, and in particular (where possible) avoid, or at least minimise, the need for submissions on them:
e: minimise the adducing of evidence other than the assessor's report and evidence as to actual repair costs:
f: maximise the use of informal means to resolve the dispute.
2: Subsection (1) is subject to sections 57(2) 68 subparts 5 7 8 9 Part 2
59: Procedure for adjudication of lower-value claims
1: The following provisions apply to the adjudication of a lower-value claim:
a: the tribunal must deal with the claim on the papers unless satisfied on reasonable grounds that—
i: the cost of repairing the damage in respect of which the claim is brought is, or is likely to be, above the lower-value ceiling; or
ii: for some other reason it is appropriate to hold a hearing:
b: a preliminary conference must not be held unless the tribunal is satisfied that it is necessary to hold one:
c: the tribunal must not approve referring the claim to mediation unless satisfied that it is highly likely that the claim will be resolved by mediation.
2: Subsection (1) overrides anything to the contrary in subparts 5 7 8 9 Part 2 Adjudication and other dispute resolution procedures
60: Right to apply for adjudication of claims
1: The owner of a dwellinghouse has the right to apply to the tribunal to have the claim adjudicated if it is an eligible claim.
2: Subsection (1) has effect despite any provision of any existing agreement or contract that requires or provides for—
a: the submission to arbitration of any matter; or
b: the making of an arbitral award as a condition precedent to the pursuit of any other proceedings or remedy.
3: Existing agreement or contract
4: However, the right referred to in subsection (1), and its exercise, are restricted by subsections (5), (7), and (8).
5: An owner of a dwellinghouse may not, however, apply to have an eligible claim adjudicated, or continue adjudication proceedings, if, and to the extent that, the subject matter of the claim is the subject of—
a: an arbitration that has already commenced; or
b: proceedings initiated by the claimant (including by way of counterclaim) by way of—
i: proceedings in a court or the Disputes Tribunal
ii: proceedings under section 177
6: Subsection (5) does not limit the power of any party to apply for proceedings to be transferred to adjudication under section 120 section 121
7: If a claim is a lower-value claim, a claimant who would otherwise have the right to apply to the tribunal to have it adjudicated must not apply to have it adjudicated unless the claimant has—
a: applied under section 80(2)(a)
b: received from the chief executive a certificate that he or she is satisfied that the claimant has made reasonable attempts to resolve the claim under the lower-value claims dispute resolution assistance process.
8: A claimant who would otherwise have the right to apply to the tribunal to have a claim adjudicated must not apply to have it adjudicated unless—
a: the claimant has a full assessor's report in respect of the claim; or
b: the work needed to make the dwellinghouse concerned weathertight and repair the damage in respect of which the claim is brought has been done, and the claimant holds receipts for all payments required to be made for that work. 2002 No 47 s 22 Section 60(5)(b)(i) amended 1 March 2017 section 261 District Court Act 2016
61: Effect on other dispute resolution procedures
1: If a claimant who has applied to the tribunal to have a claim adjudicated under this Act initiates proceedings of a kind referred to in section 60(5)(a)
a: the claimant must notify the tribunal; and
b: that notification is to be treated as a notice of withdrawal under section 67
2: Nothing in this Act prevents the other parties to an adjudication from submitting any matter in relation to a claim to another dispute resolution procedure (for example, to the courts, to arbitration, or to mediation). 2002 No 47 s 23 Procedure for, and effect of, initiating adjudication
62: How to initiate adjudication
1: A claimant initiates the adjudication of a claim by applying to the tribunal, in writing and in a form (if any) approved for the purpose by the chief executive of the Ministry after consultation with
a: the other party or parties to the adjudication; and
b: the department.
2: The application to the tribunal must be accompanied by—
a: a copy of the decision of the chief executive under section 48 section 49
b: the prescribed fee (if any).
3: The application in writing in the approved form (if any) must state—
a: the date of the application; and
b: the nature and a brief description of the claim and of the parties involved; and
c: the ( see section 50
d: the names and addresses of the parties to the adjudication; and
e: if available, the addresses that the parties have specified for the service of notices.
4: Every copy of the application that is served on another party to the adjudication must be accompanied by a copy of the assessor's report that relates to the claim, and may be accompanied by any other documents.
5: Until the commencement of the first regulations prescribing a fee for the purposes of subsection (2)(b), this Act has effect as if a fee of $400 is prescribed. 2002 No 47 s 26 Section 62(1) amended 29 October 2019 section 325 Tribunals Powers and Procedures Legislation Act 2018 Section 62(3)(c) amended 29 August 2007 section 8(a) Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 62(3)(c) amended 29 August 2007 section 8(b) Weathertight Homes Resolution Services (Remedies) Amendment Act 2007
63: Status and effect of adjudication proceedings under other enactments
Adjudication proceedings—
a: must be treated as proceedings for the purposes of section 76
b: must be treated as actions or proceedings for the purposes of section 42
c: must be treated as legal proceedings for the purposes of sections 248 321(1)(b) Section 63(a) amended 3 December 2007 section 445 Insolvency Act 2006 Other provisions relating to adjudication
64: Assignment of member to act as tribunal
The chair—
a: must assign a member to act as the tribunal in relation to a claim to which an application under section 62
b: may assign himself or herself. 2002 No 47 s 27
65: Preliminary conferences
As soon as the tribunal thinks practicable after a member has been assigned to act as the tribunal in relation to a claim (and whether or not a response has been received under section 66
a: its particular circumstances and those of the parties; and
b: its speedy and cost-effective resolution.
66: Response to adjudication claim
1: A respondent may serve on the tribunal a written response to the adjudication claim—
a: within 25 working days after receiving that claim; or
b: within any further time that the parties to the adjudication agree; or
c: within any further time that the tribunal may allow if the tribunal considers that, in the circumstances, the additional time is reasonably required to enable the respondent to complete the written response.
2: The response may be accompanied by any other documents.
3: The respondent must serve a copy of the response and any accompanying documents on the claimant and every other party to the adjudication, either before or immediately after they are served on the tribunal. 2002 No 47 s 28
67: Withdrawal of claim from adjudication
1: A claim may be withdrawn from adjudication—
a: if the parties agree to its withdrawal; or
b: if the claimant serves written notice of withdrawal on the tribunal, and either—
i: no respondent objects to the withdrawal; or
ii: the tribunal does not recognise a legitimate interest on the part of any respondent who objects to the withdrawal in obtaining a determination in respect of the claim.
2: The tribunal does not have to determine a claim withdrawn in accordance with subsection (1). 2002 No 47 s 30
68: Parties may be represented at adjudication proceedings
1: A party to a claim that is being adjudicated by the tribunal may be represented by the representatives (whether legally qualified or not) that the party considers appropriate.
2: Subsection (1) is subject to the tribunal's power to direct that the number of representatives present at a conference of the parties is to be limited to allow for the efficient conduct of proceedings. 2002 No 47 s 50
69: Adjudication proceedings usually to be in public
1: The proceedings of the tribunal must, except as provided in subsection (2), be conducted in public.
2: The tribunal may, on the application of any party to the proceedings, and after having due regard to the interests of the parties and to the public interest, order that the whole or any part of the proceedings be held in private.
3: The tribunal may, on the application of any party to the proceedings, and after having due regard to the interests of the parties and to the public interest, make an order prohibiting the publication of any report or description of the proceedings or of any part of the proceedings at any hearing before the tribunal (whether held in public or in private), but no such order may prohibit the publication of any decision of the tribunal.
4: Despite any order made under subsection (3), the tribunal may permit a report or description of the proceedings or of any part of the proceedings to be included in any publication that is genuinely of a professional or technical nature. 2002 No 47 s 51
70: Protection and privileges of witnesses
Every person has the same privileges as witnesses have in a court of law, in relation to—
a: giving information to the tribunal; and
b: giving evidence to, or answering questions put by, the tribunal; and
c: producing papers, documents, records, or things to the tribunal.
71: Privileges and immunities of counsel
Every counsel appearing before the tribunal has the same privileges and immunities as counsel in a court of law.
72: Matters tribunal may determine in adjudicating claim
1: In relation to any claim in respect of which an application has been made to the tribunal to have it adjudicated, the tribunal can determine—
a: any liability to the claimant of any of the parties; and
b: any remedies in relation to any liability determined.
2: In relation to any liability determined, the tribunal can also determine—
a: any liability of any respondent to any other respondent; and
b: remedies in relation to any liability determined. 2002 No 47 s 29
73: Powers of tribunal in adjudication proceedings
1: The tribunal may do any or all of the following things in relation to adjudication proceedings or the parties to them:
a: conduct the proceedings in any manner it thinks fit, including adopting processes that enable it to perform an investigative role:
b: request further written submissions from any party, as long as it then gives the relevant parties an opportunity to comment on those submissions:
c: request the parties to provide copies of any documents that it reasonably requires:
d: consider any evidence or orders from a former owner's adjudication proceedings that it thinks relevant and applicable to the claim, as long as it—
i: informs the parties that it intends to do so; and
ii: gives them the opportunity to comment:
e: set deadlines for further submissions and comments by the parties:
f: appoint an expert adviser to report on specific issues, as long as the parties are notified before the appointment is made:
g: call a conference of the parties:
h: inspect the dwellinghouse to which a claim relates, as long as the consent of the owner or occupier is obtained before any land or premises are entered:
i: request the parties to do any other thing during the course of the proceedings that it considers may reasonably be required to enable the effective and complete determination of the questions that have arisen in them:
j: for a claim whose referral to mediation it has consented to, set a maximum period of mediation shorter than the period stated in section 82
k: after considering advice from the mediator, and being satisfied that the parties are near resolution of and likely to resolve their dispute if allowed more time, allow, for a claim whose referral to mediation it has consented to, a maximum period of mediation longer than the period stated in section 82
l: issue any other reasonable directions relating to the conduct of the proceedings.
2: The parties to adjudication proceedings must comply with any request or direction of the tribunal made or given under this section.
3: If the owner or occupier referred to in subsection (1)(h) is a party to the proceedings concerned, his or her consent must not be unreasonably withheld.
4: The tribunal also has the powers specified in Part 2 2002 No 47 s 36
74: Parties' failures to act do not affect tribunal's powers to determine claim
The tribunal's powers to determine a claim are not affected by—
a: the failure of a respondent to serve a response on the claimant under section 66
b: the failure of any party to—
i: make a submission or comment within the time allowed; or
ii: give specified information within the time allowed; or
iii: attend, or participate in, a conference of the parties called by the tribunal; or
iv: do any other thing the tribunal asks for or directs. 2002 No 47 s 37
75: Tribunal may draw inferences from parties' failures to act and determine claim based on available information
If any failure of the kind referred to in section 74
a: draw from the failure any reasonable inferences it thinks fit; and
b: determine the claim concerned on the basis of the information available to it; and
c: give any weight it thinks fit to information that—
i: it asked for, or directed to be provided; but
ii: was provided later than requested or directed. 2002 No 47 s 38
76: Further provisions in Part 2 of Schedule 3
Part 2 2002 No 47 s 39
6: Mediation of claims
77: Mediation services
1: The chief executive must employ or engage persons to provide mediation services to assist persons to resolve, promptly and effectively, eligible claims.
2: The chief executive decides how the mediation services are to be provided.
3: Any of the mediation services may be provided, for example,—
a: by a telephone, video conference, fax, internet, or email service; or
b: by specialists who—
i: respond to requests or themselves identify how, where, and when their services can best support the object of this Act; or
ii: provide their services in the manner, and at the time and place, that are most likely to resolve the eligible claim in question; or
iii: provide their services in all of the ways described in this paragraph.
4: Subsection (3) does not limit subsection (2). 2002 No 47 s 13
78: Independence of mediation personnel
1: The chief executive must ensure that any person employed or engaged to provide mediation services under section 77
a: is, in deciding how to handle or deal with any particular claim or aspect of it, able to act independently; and
b: is independent of any of the parties to whom mediation services are being provided in a particular case.
2: The chief executive, in managing the overall provision of mediation services, is not prevented by subsection (1) from giving general instructions about the manner in which, and the times and places at which, mediation services are to be provided.
3: Any such general instructions may include general instructions about the manner in which mediation services are to be provided in relation to particular types of matters or particular types of situations or both. 2002 No 47 s 20
79: Other mediation services
Nothing in this Act prevents any person seeking and using mediation services other than those provided by the chief executive under this Act. 2002 No 47 s 21
80: Access to mediation services
1: With the consent of the tribunal, the claimant and any of the other parties to a claim in respect of which an application has been made to the tribunal to have it adjudicated may jointly refer the claim to mediation under this Act.
2: A claimant with a lower-value claim may, with the consent of any of the other parties, refer it directly to mediation under this Act if—
a: the claimant has applied to the chief executive, in the approved form, for lower-value claims dispute resolution assistance; and
b: no application has yet been made to the tribunal to have the claim adjudicated.
3: A claim cannot be referred to mediation under this Act except under subsection (1) or (2).
4: A referral to mediation must be in the approved form (if any).
5: The form must be signed by all parties to the mediation and, in the case of a claim referred under subsection (1), the tribunal. 2002 No 47 s 14
81: Procedure in relation to mediation services
1: If mediation services are provided, the mediator who provides the services decides what services are appropriate to the particular case.
2: The mediator, in providing those services,—
a: may, having regard to the object of this Act and the needs of the parties, follow such procedures, whether structured or unstructured, or do such things as he or she considers appropriate to resolve the claim promptly and effectively; and
b: may receive any information, statement, admission, document, or other material, in any way that he or she thinks fit, whether or not it would be admissible in judicial proceedings.
3: A mediator does not have power to determine any matter, even if the mediator is required to do so by the parties.
4: A mediation process—
a: may not continue beyond any maximum period set for it under section 73(1)(j)
b: may not in any case continue beyond the applicable maximum period stated in section 82
5: Subsection (4) sections 73(1)(k) 83 2002 No 47 s 15
82: Time-frames for mediation
The following maximum periods apply to mediation:
a: for claims under section 19
b: for all other claims (whether mediation occurs before or during adjudication), 20 working days.
83: Chief executive may for certain lower-value claims allow longer maximum period of mediation
If, in any particular case, no application has yet been made to the tribunal to have a lower-value claim adjudicated, the chief executive may, if satisfied that the parties are near resolution of, and likely to resolve, the dispute, if allowed more time, allow for the claim a maximum period of mediation longer than the period stated in section 82
84: Confidentiality
1: A person to whom subsection (2) applies must, unless he or she is authorised to do otherwise by the parties or the relevant party, keep confidential—
a: any statement, admission, or document created or made for the purposes of the mediation (including a settlement under section 85
b: any information that, for the purposes of the mediation, is disclosed orally in the course of the mediation.
2: This subsection applies to a person who—
a: provides mediation services; or
b: is a party to a mediation; or
c: is the chief executive; or
d: is a person employed or engaged by the department; or
e: is a person who assists either a mediator or a person to whom mediation services are provided.
3: No person who provides mediation services may give evidence in any civil proceedings, whether under this Act or any other Act, about—
a: the provision of the services; or
b: anything related to the provision of the services that comes to his or her knowledge in the course of the provision of the services.
4: No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (1), is required to be kept confidential.
5: Nothing in the Official Information Act 1982
6: Nothing in this section—
a: prevents the discovery or affects the admissibility of any evidence (being evidence that is otherwise discoverable or admissible and that existed independently of the mediation process) merely because the evidence was presented in the course of the provision of mediation services; or
b: prevents the gathering of information by the department for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; or
c: prevents the disclosure by any person employed or engaged by the chief executive to any other person employed or engaged by the chief executive of matters that need to be disclosed for the purposes of giving effect to this Act. 2002 No 47 s 16
85: Settlements
1: If a claim is resolved, in whole or in part, by agreement, whether through the provision of mediation services or otherwise, any person to whom subsection (2) applies and who holds a general authority referred to in subsection (2) may, at the request of the parties to the claim, and under that general authority, sign the agreed terms of settlement.
2: This subsection applies to a person—
a: who is employed or engaged by the chief executive to provide the services; and
b: who holds a general authority, given by the chief executive, to sign, for the purposes of this section, agreed terms of settlement.
3: A person who receives a request under subsection (1) must, before signing the agreed terms of settlement,—
a: explain to the parties the effect of subsection (5); and
b: be satisfied that, knowing the effect of that subsection, the parties affirm their request.
4: A person who signs the agreed terms of settlement must give a statutory declaration in the approved form (if any) that the requirements of this section have been complied with.
5: If, following the affirmation referred to in subsection (3) of a request made under subsection (1), the agreed terms of settlement to which the request relates are signed by the person empowered to do so,—
a: those terms are final and binding on, and enforceable by, the parties; and
b: except for enforcement purposes, no party may seek to bring those terms before a court, whether by action, appeal, application for review, or otherwise. 2002 No 47 s 17
86: Use of settlements for research, education, etc
1: A mediator who signs agreed terms of settlement under section 85(1)
2: Agreed terms of settlement copied to the chief executive under this section—
a: may be used by the department for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; and
b: may be disclosed by the chief executive, or by any person employed or engaged by the chief executive, to any person, or any other person, who is so employed or engaged, if the disclosure is necessary for the purposes of giving effect to this Act.
87: Enforcement of terms of settlement agreed or authorised
1: Any agreed terms of settlement that are, under section 85
2: The terms of settlement referred to in subsection (1) must be filed in the District Court before they can be enforced.
3: If any agreed terms of settlement include a requirement that a party to the claim pay money to the claimant, sections 97 98
4: This section applies, despite section 74 2002 No 47 s 18 Section 87(4) replaced 1 March 2017 section 261 District Court Act 2016
88: Mediation services not to be questioned as being inappropriate
1: No mediation services may be challenged or called into question in any proceedings on the ground—
a: that the nature and content of the services were inappropriate; or
b: that the manner in which the services were provided was inappropriate.
2: Nothing in subsection (1) or in section 85 2002 No 47 s 19
7: Determination of claims in adjudication proceedings
Tribunal's determination
89: Tribunal's determination: timing
1: The tribunal must determine a claim—
a: either—
i: if there has been mediation, within 35 working days after the last mediation process has been referred back to the tribunal from mediation; or
ii: if there has been no mediation, within 35 working days after the end of the period referred to in section 66(1)
b: within any further time that the parties to the adjudication agree.
2: The tribunal must give a copy of the determination to every party to the adjudication as soon as practicable after making a determination. 2002 No 47 s 40
90: Tribunal's determination: substance
1: The tribunal may make any order that a court of competent jurisdiction could make in relation to a claim in accordance with principles of law.
1A: An order under subsection (1) may require the payment of general damages (for example, for relevant mental distress).
1B: Subsection (1A) does not limit subsection (1).
2: However, if the tribunal makes an order under subsection (1) that requires a person to take any action other than the payment of money, the tribunal must also determine an amount of money that is payable by the person required to take the action, and a date by which that amount is payable if that person fails or refuses to take the action before that date.
3: If the tribunal determines that a party to the adjudication is liable to make a payment to another party, the tribunal may make that determination subject to any conditions that the tribunal thinks fit.
4: The tribunal may determine that the liability of a party to the adjudication depends on another party to that adjudication meeting any conditions that the tribunal may impose.
5: The fact that a claim is a lower-value claim does not prevent the value of the tribunal's determination from exceeding the lower-value ceiling.
6: If a claim is settled by agreement between the parties before the tribunal's determination is given, the tribunal—
a: must terminate the adjudication proceedings; and
b: if requested by the parties, may record the settlement in the form of a determination on agreed terms. 2002 No 47 s 42 Section 90(1) substituted 29 August 2007 section 9 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 90(1A) inserted 29 August 2007 section 9 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007 Section 90(1B) inserted 29 August 2007 section 9 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007
91: Costs of adjudication proceedings
1: The tribunal may determine that costs and expenses must be met by any of the parties to the adjudication (whether those parties are or are not, on the whole, successful in the adjudication) if it considers that the party has caused those costs and expenses to be incurred unnecessarily by—
a: bad faith on the part of that party; or
b: allegations or objections by that party that are without substantial merit.
2: If the tribunal does not make a determination under subsection (1), the parties to the adjudication must meet their own costs and expenses. 2002 No 47 s 43
92: Tribunal's determination: form
1: The tribunal's determination of an adjudication—
a: must be in writing; and
b: must state the tribunal's reasons for it; and
c: if the tribunal determines that a party to the adjudication is liable to make a payment, must include a statement setting out the consequences for the party if he or she takes no steps in relation to an application to enforce the determination.
2: After a copy of the determination is given to the parties to an adjudication under section 89(2)
a: errors in computation; or
b: clerical or typographical errors; or
c: errors of a similar nature. 2002 No 47 s 41 Appeal from tribunal's determination
93: Right of appeal
1: A party to a claim that has been determined by the tribunal may appeal on a question of law or fact that arises from the determination.
2: An appeal must be filed in—
a: the District Court if the amount at issue does not exceed $350,000
b: the High Court if the amount at issue exceeds $350,000
3: For the purposes of subsection (2), the amount at issue in relation to a determination is—
a: the amount of any money required to be paid under the determination by the person filing the appeal (including any amount determined under section 90(2)
b: if the appeal relates to a determination in which the tribunal has declined to require payment of any amount of money (or money's worth in terms of section 90(2)
4: A claimant may abandon so much of a claim to which an appeal relates as exceeds $350,000
5: If an appeal is commenced by a person who is required to pay money to a party to a claim, the person may bring the appeal within the jurisdiction of the District Court by paying the other person the difference between the amount required to be paid under the determination and $350,000
6: Section 182 2002 No 47 s 44 Section 93(2)(a) amended 1 March 2017 section 261 District Court Act 2016 Section 93(2)(b) amended 1 March 2017 section 261 District Court Act 2016 Section 93(4) amended 1 March 2017 section 261 District Court Act 2016 Section 93(5) amended 1 March 2017 section 261 District Court Act 2016
94: Procedure for commencing appeal
1: An appeal under section 93
2: The notice of appeal must be filed—
a: within 20 working days after the date of the determination to which the appeal relates; or
b: within any further time that the relevant court may allow on application made before or after the expiration of the period referred to in paragraph (a). 2002 No 47 s 45
95: Determination of appeal
1: In its determination of any appeal, the court may do any 1 or more of the following things:
a: confirm, modify, or reverse the determination or any part of it:
b: exercise any of the powers that could have been exercised by the tribunal in relation to the claim to which the appeal relates.
2: A determination under subsection (1)—
a: has effect as if it were a determination made by the tribunal for the purposes of this Act; and
b: is a final determination of the claim.
3: Subsection (2)(b) does not prevent any proceedings between the claimant and respondent to the adjudication to which the appeal relates from being heard and determined at the same time as the appeal. 2002 No 47 s 46
96: Effect of appeal on tribunal's determination
An appeal under section 93 2002 No 47 s 47 Enforcement of tribunal's determination
97: Duty to comply with tribunal's determination
A party to the adjudication must comply with a determination of the tribunal. 2002 No 47 s 48
98: Enforcement of tribunal's determination
1: Every determination of the tribunal must be treated as an order of the District Court, and, subject to this section, may be enforced accordingly.
2: If application is made to the District Court section 90(2)
3: If that party does not file in the court, within 10 working days after receiving notice of the application, a notice of objection, the order may, after the expiry of that period, be enforced under subsection (1).
4: The notice referred to in subsection (3) may be given only on the ground that it is the belief of the party giving it that the order of the tribunal has been fully complied with and that the party therefore disputes the entitlement of the applicant to enforce it.
5: If the party against whom enforcement is sought files the notice referred to in subsection (3) within the 10-working-day period specified in subsection (3), the District Court must determine the matter.
6: This section applies, despite section 74 2002 No 47 s 49 Section 98(2) amended 1 March 2017 section 261 District Court Act 2016 Section 98(6) replaced 1 March 2017 section 261 District Court Act 2016
99: Records of adjudication
1: The tribunal is responsible for ensuring the safe custody of the records and papers relating to adjudications conducted under this Act.
2: The records and papers must be available for public inspection, on payment of the relevant fee (if any), at all reasonable times, unless an order of the tribunal under section 69 clause 14
3: Any person may, on application to the tribunal and payment of the relevant fee (if any), require the tribunal to supply to that person a true copy of any record or paper for the time being in the custody or under the control of the tribunal and available for public inspection under subsection (2).
4: A certificate signed by a member and to the effect that a copy of that kind is a true copy of the record or paper to which the certificate relates is, in the absence of proof to the contrary, sufficient evidence that the copy is a true copy of that record or paper.
5: Relevant fee the District Court Act 2016 2002 No 47 s 52 Section 99(5) amended 1 March 2017 section 261 District Court Act 2016
100: Adjudication determinations to be made available
1: The tribunal—
a: must give public notice of every determination it makes; and
b: must copy every determination it makes to—
i: the chief executive; and
ii: the Secretary.
2: Copies of each determination of the tribunal, which must include the tribunal's reasons for each determination, must be available by purchase from the Ministry at a reasonable price.
3: Every notice published under subsection (1) must, for the purposes of clause 6 2002 No 47 s 53
8: Weathertight Homes Tribunal
Establishment, exercise of powers, and members and officers
101: Weathertight Homes Tribunal established
1: This section establishes the Weathertight Homes Tribunal.
2: The tribunal comprises all members.
3: The chair presides over the tribunal.
102: Exercise of powers of tribunal
The duties, functions, and powers of the tribunal are performed and exercised by its members.
103: Appointment of members of tribunal
1: Each member is appointed by the Governor-General on the recommendation of the Minister of Justice.
2: The recommendation of the Minister of Justice must be made after consultation with the Minister (as defined in section 8
3: The Minister of Justice must recommend for appointment only people who, in the opinion of that Minister, are suitable to be appointed as members, having regard to their knowledge, skills, and experience.
4: One member must be appointed by the Governor-General as the chair of the tribunal.
5: The provisions of Part 1 2002 No 47 s 24
103A: Appointment of temporary acting chair or member
1: If the chair or a member of the tribunal becomes incapable of acting by reason of illness, absence, or other sufficient cause, or if the chair or a member considers it is not proper or not desirable that he or she should adjudicate on a specified matter, the Governor-General, on the recommendation of the Minister of Justice made after consultation with the Minister, may appoint a suitable person as an acting chair or acting member for the period or purpose stated in the appointment.
2: Before making a recommendation, the Minister of Justice must consult with the Minister.
3: No person may be appointed as an acting chair or acting member unless he or she is eligible for appointment to the relevant position.
4: An acting chair or acting member is, while acting in the position, to be treated as the chair or a member of the tribunal.
5: No appointment of an acting chair or acting member, no act done by an acting chair or acting member, and no act done by the tribunal may be questioned in any proceedings on the ground that the occasion for the appointment had not arisen or had ceased. Section 103A inserted 14 November 2018 section 326 Tribunals Powers and Procedures Legislation Act 2018
104: Conflicts of interest
1: A member who, in performing and exercising the duties, functions, and powers of the tribunal, has a conflict of interest, must—
a: disclose it to the parties to the adjudication proceedings concerned; and
b: withdraw from those proceedings unless those parties agree otherwise.
2: A party who under subsection (1)(b) agrees to a member's continuing to act forfeits any right to object to the member's acting on the basis of any conflict of interest disclosed by the member under subsection (1)(a) before the party agreed. 2002 No 47 s 35
105: Members not compellable witnesses
A member may not be required to give evidence in any civil proceedings on anything connected with an adjudication that has come to his or her knowledge in the course of adjudication proceedings. 2002 No 47 s 54
106: Manner of provision of adjudication services
1: The chair decides how the adjudication services under this Act are to be provided.
2: Adjudication services may be provided, for example,—
a: by a telephone, video conference, fax, internet, or email service; or
b: by members who—
i: respond to requests or themselves identify how, where, and when their services can best support the object of this Act; or
ii: provide their services in the manner, and at the time and place, that are most likely to resolve the claim in question; or
iii: provide their services in all of the ways described in this paragraph.
3: Subsection (2) does not limit subsection (1). 2002 No 47 s 25
106A: Orderly and efficient operation
The chair of the tribunal is responsible for making such arrangements as are practicable to ensure that he or she and each member performs his or her functions—
a: in an orderly and efficient manner; and
b: in a way that achieves the purposes of this Act. Section 106A inserted 14 November 2018 section 327 Tribunals Powers and Procedures Legislation Act 2018
107: Chair may delegate duties
1: The chair may delegate to another member all or any of the chair's duties under the following sections:
a: section 27(2)(a) consultation about section 26(2)
b: section 49
c: section 62(1) and (3) consultation about
d: section 64
e: section 101(3)
f: section 106
g: section 113(1)(a)
h: section 114
i: section 117(d)
j: section 124(2)
k: clause 9(3) consultation about
2: The delegation—
a: must be in writing and signed by the chair:
b: must specify the duties delegated, and the person or persons to whom they are delegated (the delegates
c: does not prevent the chair from performing the duties delegated, or affect his or her responsibility for actions of the delegates:
d: is revocable at will by written notice to the delegates:
e: may be made subject to any terms and conditions stated in it the chair thinks fit:
f: may permit some or all of the delegates to delegate further the duties delegated, subject to any terms and conditions stated in it the chair thinks fit.
3: A delegate—
a: may perform the duties delegated in the same manner and with the same effect as if they had been conferred or imposed on the delegate directly by this Act; but
b: must perform them (and may further delegate them to the extent that the delegation permits) only in accordance with any terms and conditions stated in the delegation. Section 107(1)(a) amended 29 October 2019 section 328 Tribunals Powers and Procedures Legislation Act 2018 Section 107(1)(c) amended 29 October 2019 section 328 Tribunals Powers and Procedures Legislation Act 2018 Section 107(1)(k) amended 29 October 2019 section 328 Tribunals Powers and Procedures Legislation Act 2018
108: Registrar and other staff of tribunal
1: A Registrar of the tribunal may be appointed under the Public Service Act 2020
2: The Secretary may designate as many employees of the Ministry to act as other officers of the tribunal as may be required for that purpose.
3: The officers designated must act under the general direction of the Secretary.
4: The Secretary must provide all other employees required to give the tribunal the services and resources necessary for that purpose.
5: Any person appointed as Registrar under subsection (1) may hold that position either separately or in conjunction with any other office or position in the Ministry.
6: An employee designated under subsection (2) or provided under subsection (4) may also hold any other office or position in the Ministry. Section 108(1) amended 7 August 2020 section 135 Public Service Act 2020 Tribunal's powers, etc, relating to adjudication proceedings
109AA: Procedure
The tribunal may regulate its procedures as it sees fit, subject to this Act and any regulations made under it and any practice directions made under section 114 Section 109AA inserted 14 November 2018 section 329 Tribunals Powers and Procedures Legislation Act 2018
109: Termination of proceedings by tribunal
The tribunal must terminate adjudication proceedings if it considers, on reasonable grounds, that they should not have been commenced, or should not be continued, in terms of section 60(5) 61(1) 2002 No 47 s 31
109A: Tribunal may strike out, determine, or adjourn proceeding
1: The tribunal may strike out, in whole or in part, a proceeding if satisfied that it—
a: discloses no reasonable cause of action; or
b: is likely to cause prejudice or delay; or
c: is frivolous or vexatious; or
d: is otherwise an abuse of process.
2: If a party is neither present nor represented at the hearing of a proceeding, the tribunal may,—
a: if the party is required to be present, strike out the proceeding; or
b: determine the proceeding in the absence of the party; or
c: adjourn the hearing. Section 109A inserted 14 November 2018 section 330 Tribunals Powers and Procedures Legislation Act 2018
110: Consolidation of adjudication proceedings
If 2 or more adjudication proceedings are pending, the tribunal may, with the written consent of all of the parties to them, determine them at the same time. 2002 No 47 s 32
111: Joinder of parties
1: The tribunal may order that a person be joined as a respondent in adjudication proceedings if it considers that—
a: the person ought to be bound by, or have the benefit of, an order of the tribunal; or
b: the person's interests are affected by the proceedings; or
c: for any other reason it is desirable that the person should be joined as a respondent.
2: The tribunal may make an order under subsection (1) on the application of any party or on its own initiative.
3: If the tribunal makes an order under subsection (1),—
a: it must also order the claimant to serve a notice that complies with section 62(2)(a), (3), and (4)
i: the person joined as a respondent; and
ii: the other parties to the adjudication; and
iii: the department; and
b: section 66
4: Subsection (3)(a) does not require a claimant to give a copy of the assessor's report to any person other than the newly joined respondent, or to pay a further fee under section 62(2)(b) 2002 No 47 s 33
112: Removal of party from proceedings
1: The tribunal may, on the application of any party or on its own initiative, order that a person be struck out as a party to adjudication proceedings if the tribunal considers it fair and appropriate in all the circumstances to do so.
2: This section is subject to section 57(2) 2002 No 47 s 34
113: Questions of law may be referred to High Court
1: If a question of law arises during adjudication proceedings, the tribunal—
a: may (if the duties, functions, and powers of the tribunal in relation to the adjudication are not being performed and exercised by the chair, with the written approval of the chair) refer the question to the High Court, in the manner (if any) prescribed by rules of court, for its opinion; and
b: may, if it thinks fit, delay the proceedings until it receives the court's opinion.
2: The High Court must give the tribunal its opinion on the question; and the tribunal must then continue the adjudication in accordance with the opinion.
114: Practice directions
For the purpose of guiding the members and officers of the tribunal, and parties before the tribunal, the chair Section 114 amended 14 November 2018 section 331 Tribunals Powers and Procedures Legislation Act 2018
114A: Online publication of information about procedures, time frames, and progress of decisions
The following information must be published on an Internet site maintained by or on behalf of the chief executive of the Ministry of Justice:
a: information about the purpose of the tribunal and how to commence a proceeding:
b: any requirements that must be met to bring a proceeding:
c: guidelines on how and when parties may obtain information on the progress of their case and when a decision may be expected. Section 114A inserted 29 October 2019 section 332 Tribunals Powers and Procedures Legislation Act 2018
114B: Online publication of final written decisions
1: Every final written decision of the tribunal must be published on an Internet site as soon as practicable unless there is good reason not to publish it.
2: A final written decision may be published in part if there is good reason for not publishing the full decision.
3: Subsections (1) and (2) are subject to section 69(3) clause 14
4: Good reason not to publish a decision, or part of it, includes the following:
a: non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:
b: the decision falls into a category of decisions that are of limited public value:
c: taking into account the presumption in subsection (1) in favour of publication, the tribunal nevertheless determines that the decision or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.
5: In this section, final written decision
a: a written reserved decision following an oral hearing:
b: a written decision in any case considered on the papers. Section 114B inserted 29 October 2019 section 332 Tribunals Powers and Procedures Legislation Act 2018 Offences, and contempt of tribunal
115: Offences
Every person commits an offence, and is liable on
a: or any witness or officer
b: intentionally interrupts the proceedings of the tribunal or otherwise misbehaves while the tribunal is sitting; or
c: intentionally and without lawful excuse disobeys an order or direction of the tribunal in the course of any proceedings before the tribunal; or
d: fails or refuses to comply with a witness summons issued by the tribunal. Section 115 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 115(a) amended 14 November 2018 section 333(1) Tribunals Powers and Procedures Legislation Act 2018 Section 115(a) amended 14 November 2018 section 333(2) Tribunals Powers and Procedures Legislation Act 2018
115A: Offence of breaching suppression order
A person who breaches an order made under section 69(3) clause 14 Section 115A inserted 14 November 2018 section 334 Tribunals Powers and Procedures Legislation Act 2018
116: Person in contempt of tribunal may be excluded from proceedings
1: The tribunal may order the exclusion from a sitting of the tribunal of any person whose behaviour, in the tribunal's opinion, constitutes an offence against paragraph (a), (b), or (c) of section 115 or an officer of the tribunal
2: Subsection (1) applies whether or not the person whose exclusion is ordered is charged with the offence. Section 116(1) amended 14 November 2018 section 335 Tribunals Powers and Procedures Legislation Act 2018
9: Miscellaneous provisions
117: Service of notices
1: Any notice or any other document required to be served on, or given to, any person under this Act, or under any regulation made under this Act, is sufficiently served or given if—
a: the notice or document is delivered to that person; or
b: the notice or document is left at that person's usual or last known place of residence or business in New Zealand; or
c: the notice or document is posted in a letter addressed to the person at that person's usual or last known place of residence or business in New Zealand; or
ca: the notice or document is sent electronically; or
d: the notice or document is sent in any manner approved for the purpose by the chair.
2: The notice or other document is treated as having been served, under subsection (1)(c), 5 working days after it was posted if it is proved that it was addressed to the recipient at the recipient’s address for service and dispatched by post.
3: If a notice or any other document is served in electronic form under subsection (1)(ca), then, unless the contrary is shown,—
a: the notice or other document is served at the time the electronic communication containing the notice or document first enters an information system outside the control of its originator; and
b: in proving service, it is sufficient to prove that the electronic communication was properly addressed and sent.
4: In this section, information system 2002 No 47 s 56 Section 117(1)(ca) inserted 14 November 2018 section 336(1) Tribunals Powers and Procedures Legislation Act 2018 Section 117(2) inserted 14 November 2018 section 336(2) Tribunals Powers and Procedures Legislation Act 2018 Section 117(3) inserted 14 November 2018 section 336(2) Tribunals Powers and Procedures Legislation Act 2018 Section 117(4) inserted 14 November 2018 section 336(2) Tribunals Powers and Procedures Legislation Act 2018
118: Mediator or tribunal may decline to deal with claim
1: A mediator or the tribunal may decline to deal with a claim if, in the opinion of the mediator or the tribunal,—
a: the subject matter of the claim is trivial; or
b: the claim is frivolous or vexatious; or
c: the claimant is not pursuing the matter in good faith.
2: However, no mediator may exercise the power conferred by subsection (1) in respect of a claim unless—
a: the claim is a lower-value claim in respect of which mediation services are being provided; and
b: adjudication of the claim has not been initiated.
3: If in any case a mediator or the tribunal decides to decline to deal with a claim, the mediator or the tribunal must inform the parties of that decision and state the reasons for that decision. 2002 No 47 s 57
119: Transfer of claim to court
The tribunal may order a claim to be transferred to the District Court
a: the claim presents undue complexity:
b: the claim presents a novel claim:
c: the subject matter of the claim is related to the subject matter of proceedings that are already before the court. 2002 No 47 s 58 Section 119 amended 1 March 2017 section 261 District Court Act 2016
120: Transfer of proceedings from court
1: If proceedings relating to a claim have been commenced in the District Court
2: If proceedings relating to a claim have been commenced in the High Court, a High Court Judge may, on the application of any party or on the Judge's own motion, order that the proceedings be transferred to adjudication.
3: If proceedings are transferred under subsection (1) or (2), the tribunal may have regard to any notes of evidence transmitted to it by the Judge, and it is not necessary for that evidence to be given again in the adjudication unless the tribunal requires it.
4: An order to transfer proceedings under subsection (1) or (2) may be made only if—
a: the parties to the proceedings agree to the transfer; or
b: the Judge making the order believes that the transfer is in the best interests of justice. 2002 No 47 s 59 Section 120(1) amended 1 March 2017 section 261 District Court Act 2016
121: Transfer of proceedings from arbitration
1: If an arbitration relating to a claim has commenced, the arbitral tribunal may, with the agreement of the parties to the arbitration, order that any proceedings before it be transferred to adjudication.
2: If proceedings are transferred under subsection (1), the tribunal may have regard to any notes of evidence transmitted to the tribunal by the arbitral tribunal, and it is not necessary for that evidence to be given again in the adjudication unless the tribunal requires it. 2002 No 47 s 60
122: Exclusion of liability
1: This section applies to—
a: the chief executive and the Secretary; and
b: every member, assessor, and mediator; and
c: every officer, agent, or employee of the tribunal.
2: Unless he or she has acted in bad faith, no person to whom this section applies is under any criminal or civil liability in respect of—
a: any act done or omitted in the course of performing or exercising any of his or her functions, duties, or powers under this Act; or
b: any words spoken or written at, or for the purposes of, the hearing of any mediation or adjudication; or
c: anything in any notice given under this Act. 2002 No 47 s 61
123: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing fees for the purposes of this Act:
b: prescribing a value to be a ceiling for determining how claims are to be dealt with:
c: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations under this section are secondary legislation ( see Part 3 2002 No 47 s 62 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 123(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
124: Notifications to territorial authorities for land information memorandum purposes
1: The chief executive must notify a territorial authority (as soon as is reasonably practicable after the event, and in enough detail to enable particulars to be included in a land information memorandum issued by a territorial authority under section 44A
a: an application under section 32(1)
i: to have an assessor's report prepared in respect of it; or
ii: to have an assessor's report that was prepared in respect of it on the application of a former owner approved as suitable for the owner's claim:
b: the decision of the chief executive under section 48
c: the decision under section 49
d: the termination under section 52
e: the decision of the chief executive under section 56
f: the signing of agreed terms of settlement under section 85
g: the discontinuance or termination, for any other reason (for example, under section 55
2: The chair must notify a territorial authority (as soon as is reasonably practicable after the event, and in enough detail to enable particulars to be included in a land information memorandum issued by a territorial authority under section 44A
a: the termination of a claim under section 53
b: the withdrawal of a claim under section 67
c: the determination of a claim under section 90
d: the termination of adjudication proceedings under section 109
e: the transfer of a claim to court, under section 119
f: the transfer of proceedings to adjudication, under section 120 121
g: the discontinuance or termination, for any other reason (for example, under section 55
125: Rules of Court: District
Court
1: In addition to all other powers conferred by the District Court Act 2016
2: Rules may be made under subsection (1) only with the concurrence of—
a: the Chief District Court Judge; and
b: 2 or more members of the Rules Committee established under section 155
3: In the absence of any rules under this section, or in any situation not covered by any of those rules, the rules in relation to civil proceedings for the time being in force under the District Court Act 2016
4: See section 228 2002 No 47 s 63 Section 125 heading amended 1 March 2017 section 261 District Court Act 2016 Section 125(1) amended 1 March 2017 section 261 District Court Act 2016 Section 125(2)(b) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 125(3) amended 1 March 2017 section 261 District Court Act 2016 Section 125(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1A: Financial assistance package
Part 1A inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Preliminary Heading inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125A: Purpose of this Part
The purpose of this Part is to facilitate the repair of leaky buildings by providing for certain matters relating to the provision of a package of financial assistance measures to qualifying claimants. Section 125A inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125B: Interpretation
1: In this Part and subpart 8 2011 Gazette Gazette Contribution Criteria: Financial Assistance Package additional contributing party
a: means either or both of the following:
i: the relevant territorial authority, if it agrees to—
A: participate in the provision of the package of financial assistance measures to qualifying claimants; and
B: make, under a contribution agreement, a financial contribution towards the agreed repair costs of the dwellinghouse concerned:
ii: any other party (if any) who agrees to make a contribution (whether financial or otherwise) towards the agreed repair costs of the dwellinghouse concerned; but
b: does not include a claimant or a lender agreed repair costs
a: means the costs or expenses that—
i: a claimant may incur, or has incurred, to effect any repair agreed in a contribution agreement; and
ii: are agreed with the claimant; and
b: includes—
i: any associated costs:
ii: the agreed value of any non-financial contribution made by any additional contributing party that is not a relevant territorial authority; but
c: does not include any legal costs or expenses associated costs
a: a valuer's report on the valuation of a dwellinghouse before the repair is commenced:
b: design work in relation to or in connection with any repair:
c: project management in relation to or in connection with any repair:
d: building consent in relation to or in connection with any repair:
e: resource consent under the Resource Management Act 1991
f: alternative accommodation for the claimant in connection with or as a result of any repair:
g: storage for the claimant's furniture, household appliances, and other household effects in connection with or as a result of any repair if the furniture, household appliances, and other household effects were in the dwellinghouse at the time of commencement of the repair contributing party contribution agreement
a: is entered into between—
i: a claimant and the contributing party; or
ii: a claimant, the contributing party, and any additional contributing party; and
b: sets out the terms and conditions for the provision of financial assistance measures to the claimant financial assistance measures
a: a financial support facility that is in the form of,—
i: in the case of the contributing party and, if applicable, any additional contributing party that is a relevant territorial authority, a financial contribution towards the agreed repair costs of a dwellinghouse; and
ii: if applicable, in the case of any other additional contributing party, any or all of the following contributions towards the agreed repair costs of a dwellinghouse:
A: a financial contribution:
B: the provision of a service:
C: the supply of goods:
b: a credit support facility that is in the form of a guarantee or indemnity given to a lender under section 125I(2)
i: any loan advanced by the lender to a claimant for the sole purpose of meeting the balance of the agreed repair costs of a dwellinghouse that are not otherwise covered by the financial contributions referred to in paragraph (a):
ii: any loan advanced by the lender to a claimant as a result of the restructuring or refinancing of the loan described in subparagraph (i) lender section 125J(1)(a) section 125J(1)(b) participating territorial authority qualifying claimant section 125BA relevant territorial authority repair
a: means any repair to a dwellinghouse that is the subject of a contribution agreement that the parties to the agreement have agreed is directly necessary to—
i: rectify any damage to the dwellinghouse as a consequence of its penetration by water because of some aspect of its design, construction, or alteration, or of materials used in its construction or alteration; and
ii: make the dwellinghouse weathertight; and
b: includes demolishing the dwellinghouse and rebuilding or re-erecting it, if provided for under the contribution agreement territorial authority Local Government Act 2002
2: In this Part and subpart 8 approved chief executive civil proceedings claim claimant court of competent jurisdiction damages department dwellinghouse eligible claim leaky building Minister section 8 Section 125B inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Section 125B(1) amended 15 March 2016 section 4(1) Weathertight Homes Resolution Services Amendment Act 2016 Section 125B(1) 2011 Gazette inserted 15 March 2016 section 4(3) Weathertight Homes Resolution Services Amendment Act 2016 Section 125B(1) participating territorial authority inserted 15 March 2016 section 4(3) Weathertight Homes Resolution Services Amendment Act 2016 Section 125B(1) qualifying claimant replaced 15 March 2016 section 4(2) Weathertight Homes Resolution Services Amendment Act 2016 Section 125B(2) amended 15 March 2016 section 4(1) Weathertight Homes Resolution Services Amendment Act 2016
125BA: Meaning of qualifying claimant
1: In this Part, qualifying claimant
a: meets—
i: the contribution criteria specified by the chief executive in either clause 1 of the 2011 Gazette Weathertight Homes Resolution Services Amendment Act 2016 Gazette
ii: the contribution criteria specified in subsection (2); or
b: in the chief executive’s opinion, is taking all reasonable steps to meet the contribution criteria described in paragraph (a).
2: The contribution criteria referred to in subsection (1)(a)(ii) are as follows:
a: if the claimant has applied for adjudication under this Act (regardless of whether the claimant has commenced mediation or adjudication) and the relevant participating territorial authority was either named as a party in the application or later joined to the application, then—
i: the participating territorial authority must agree to the claimant receiving a financial contribution under the package of financial assistance measures; and
ii: the claimant must withdraw from adjudication in accordance with section 67
b: if the claimant has applied for or is involved in any other civil proceedings relating to the weathertightness of the dwellinghouse to which the relevant participating territorial authority is named as a party, or has been joined as a party,—
i: the participating territorial authority must agree to the claimant receiving a financial contribution under the package of financial assistance measures; and
ii: the claimant must discontinue the civil proceedings entirely; and
iii: if the claimant has applied for mediation or adjudication under the Act in respect of the same dwellinghouse, the claimant must also comply with paragraph (a)(ii).
3: To avoid doubt, a claimant is not required to withdraw an application for adjudication under subsection (2)(a), or to discontinue civil proceedings under subsection (2)(b), until all other applicable criteria that a person needs to meet in order to become a qualifying claimant are met. Section 125BA inserted 15 March 2016 section 5 Weathertight Homes Resolution Services Amendment Act 2016 Eligibility for financial assistance measures Heading inserted 15 March 2016 section 5 Weathertight Homes Resolution Services Amendment Act 2016
125BB: Eligibility for financial assistance measures
1: All qualifying claimants are eligible for financial assistance measures from the Crown.
2: Only those qualifying claimants who also meet the criteria specified in clause 2 of the 2011 Gazette Gazette Section 125BB inserted 15 March 2016 section 5 Weathertight Homes Resolution Services Amendment Act 2016 Applications for financial assistance measures Heading inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125C: Application for financial assistance measures
A qualifying claimant who wishes to obtain any financial assistance measures in relation to a dwellinghouse may apply to the chief executive in the approved manner. Section 125C inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125D: Deadline for application for financial assistance measures
An application under section 125C Section 125D inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Assessments relating to applications for financial assistance measures Heading inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125E: Assessors may prepare concise assessor's report relating to application for financial assistance measures and provide other advice or recommendation
1: In addition to any functions, duties, or powers of an assessor under Part 1, an assessor may carry out either or both of the following functions if requested to do so by the chief executive:
a: prepare a concise assessor's report in relation to a dwellinghouse for which an application under section 125C
b: provide any other advice or recommendation in relation to the repair of the dwellinghouse concerned (including, for example, a reassessment of the damage to a dwellinghouse after the repair has commenced).
2: To avoid doubt, section 122
3: A concise assessor's report
a: the work needed to make a dwellinghouse weathertight; and
b: the estimated cost of that work.
4: A concise assessor's report may (but is not required to) contain information about—
a: the nature and extent of the damage caused by water penetrating a dwellinghouse; and
b: what caused that damage. Section 125E inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Restrictions on civil proceedings relating to financial assistance measures Heading inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125F: Protection from liability
1: No civil proceedings may be brought against the Crown, the department, the Treasury, or any of the persons specified in subsection (2) to recover damages for any loss or damage that is due directly or indirectly to the repair of a dwellinghouse in accordance with a contribution agreement or the provision of any financial assistance measures to a claimant.
2: The persons referred to in subsection (1) are—
a: a Minister of the Crown:
b: the chief executive:
c: the Secretary to the Treasury:
d: an employee, agent, or contractor of the Crown.
3: Subsection (1) applies whether the loss or damage is caused by any person taking any action or omitting to take any action, so long as the act or omission occurred in the exercise or performance of his or her functions, duties, or powers in relation to the repair of a dwellinghouse in accordance with a contribution agreement or the provision of any financial assistance measures.
4: A person is not exempted from liability under subsection (1) for any act or omission to act that constitutes bad faith or gross negligence on the part of the person. Section 125F inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125G: Restriction on naming or joining contributing party or additional contributing party as defendant or third or subsequent party in certain civil proceedings, or otherwise seeking remedy or relief from them
1: Neither a claimant nor any other person may name, join, or seek to name or join the contributing party and, if applicable, any additional contributing party as a defendant or a third or subsequent party in any civil proceedings relating to a dwellinghouse if—
a: the dwellinghouse is or was the subject of a contribution agreement; and
b: the civil proceedings relate to the circumstances that gave rise to the need to repair the dwellinghouse in accordance with the contribution agreement.
2: Neither a claimant nor any other person may apply in any civil proceedings for any remedy or relief from the contributing party and, if applicable, any additional contributing party relating to a dwellinghouse if—
a: the dwellinghouse is or was the subject of a contribution agreement; and
b: the civil proceedings relate to the circumstances that gave rise to the need to repair the dwellinghouse in accordance with the contribution agreement.
3: A restriction under subsection (1) or (2) takes effect in respect of the contributing party when the claimant receives the first payment from the contributing party under the contribution agreement.
4: A restriction under subsection (1) or (2) takes effect in respect of any additional contributing party when—
a: the claimant receives the first payment from the additional contributing party under the contribution agreement, if the contribution from that additional contributing party under the agreement is in the form of a financial contribution:
b: the provision of a service by the additional contributing party under the contribution agreement is completed, if the contribution from that additional contributing party under the agreement is in the form of the provision of a service to the claimant:
c: the supply of goods by the additional contributing party under the contribution agreement is completed, if the contribution from that additional contributing party under the agreement is in the form of the supply of goods to the claimant.
5: If the contribution from an additional contributing party under a contribution agreement is a combination of the forms described in subsection (4), a restriction under subsection (1) or (2) takes effect in respect of the additional contributing party at the earliest time that any of subsection (4)(a) to (c) applies. Section 125G inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Effect of contribution agreement on civil proceedings relating to dwellinghouse Heading inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125H: Effect of contribution agreement on civil proceedings relating to dwellinghouse
1: This section applies to civil proceedings that—
a: are not restricted under section 125G
b: relate to a dwellinghouse that is or was the subject of a contribution agreement.
2: In assessing damages in any civil proceedings to which this section applies, the court or tribunal must, to the extent that it is relevant, take into account any contributions made under the contribution agreement. Section 125H inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011 Guarantees or indemnities may be given by Minister Heading inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125I: Minister may give guarantee or indemnity
1: The purpose of this section is to facilitate the provision of financial assistance measures that are in the form of a credit support facility to lenders.
2: For the purpose of this section, the Minister may, on behalf of the Crown, give a written guarantee or indemnity in respect of—
a: any loan advanced by a lender to a claimant if the sole purpose of the loan is to meet the balance of the agreed repair costs of a dwellinghouse that are not otherwise covered by the financial contributions provided to the claimant by the contributing party and, if applicable, any additional contributing party under a contribution agreement:
b: any loan advanced by a lender to a claimant as a result of the restructuring or refinancing of the loan described in paragraph (a).
3: The Minister must give the guarantee or indemnity on any terms and conditions specified by the Minister of Finance under section 125K
4: If the contingent liability of the Crown under the guarantees or indemnities given under subsection (2)
a: publish in the Gazette
b: present the statement to the House of Representatives.
5: The statement may contain any details about the guarantees or indemnities that the Minister considers appropriate. Section 125I inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125J: Minister of Finance may specify types of financial institutions and criteria
1: The Minister of Finance may, by notice, specify—
a: types of financial institutions in respect of which guarantees or indemnities may be given under section 125I(2)
b: criteria for financial institutions to satisfy before those guarantees or indemnities may be given.
2: Different criteria may be specified for different types of financial institutions.
3: The Minister of Finance—
a: must publish the notice in the Gazette
b: may withhold from the notice information that he or she considers to be commercially sensitive. Section 125J inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125K: Minister of Finance may specify terms and conditions of guarantees or indemnities
1: The Minister of Finance may specify the terms and conditions on which guarantees or indemnities may be given under section 125I(2)
a: the monetary limits of the guarantees or indemnities; and
b: the form and content of the guarantees or indemnities; and
c: the maximum limit of the Crown's contingent liability under the guarantees or indemnities; and
d: the period during which the guarantees or indemnities may be given.
2: If the Minister of Finance specifies the terms and conditions on which guarantees or indemnities may be given under section 125I(2) Gazette
3: The statement may contain any details about the terms and conditions that the Minister considers appropriate. Section 125K inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125L: Recovery of money paid under guarantee or indemnity
1: Any money paid by the Crown under a guarantee or indemnity given under section 125I(2)
2: A debt referred to in subsection (1)—
a: is recoverable in any court of competent jurisdiction:
b: may be paid over any period of time and on any terms and conditions that the Minister of Finance thinks fit:
c: may be written down by the Minister of Finance (except that the debt must not be written down below its market value other than in accordance with an appropriation, or other authority, by or under an Act).
3: This section does not limit or affect any other rights that the Crown may have as guarantor or indemnifier. Section 125L inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
125M: Payments in respect of guarantee or indemnity
Any money paid by the Crown under a guarantee or indemnity given under section 125I(2) Section 125M inserted 23 July 2011 section 7 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011
2: Repeal, consequential amendments, and transitional provisions
1: Repeal and consequential amendments
126: Repeal of former Act
The Weathertight Homes Resolution Services Act 2002 former Act
127: Consequential amendments
1: The Building Act 2004
a: by omitting from section 398(2)(b) 2002 2006
b: by repealing so much of Part 1
2: Section 27(2)
a: by omitting an adjudicator a member
b: by omitting 2002 2006
c: by omitting or adjudicator or member
3: The item relating to the former Act in Part 1
a: by omitting 2002 (2002 No 47) 2006 (2006 No 84)
b: by omitting 55(2)(a) 63(a)
c: by omitting 24 32
d: by omitting sections 31 to 35 section 76
e: by omitting 4(2) of the Schedule 5(2) of Schedule 3
4: The Legal Services Act 2000
a: by omitting from the definition of civil proceedings section 4(1) sections 22 to 55 of the Weathertight Homes Resolution Services Act 2002 subparts 5, 7, 8, and 9 of Part 1 of the Weathertight Homes Resolution Services Act 2006
b: by omitting from section 7(1)(p) an adjudicator the tribunal
c: by omitting from section 7(1)(p) 2002 2006
5: Section 44A(2) paragraph (e)
ea: information notified to the territorial authority under section 124 of the Weathertight Homes Resolution Services Act 2006
6: Schedule 4 The chair of the tribunal under the Weathertight Homes Resolution Services Act 2006.
2: Overview of transitional provisions for claims under former Act that are not disposed of before transition date
128: Categories of claims under former Act
Subparts 3 to 6
a: claims whose eligibility is undecided— subpart 3
b: claims that it has been decided are eligible, but that are not in mediation or adjudication— subpart 4
c: claims that it has been decided are eligible, and that are in mediation— subpart 5
d: claims that it has been decided are eligible, and that are in adjudication— subpart 6
3: Claims whose eligibility undecided before transition date
129: Claims to which this subpart applies
1: This subpart applies to a claim (the claim section 7(2)
2: This subpart also applies to a claim (the claim
a: the chief adjudicator has not considered whether or not the decision appears to be manifestly unjust; or
b: the chief adjudicator has determined that the decision appears to be manifestly unjust, but has not referred it back to the evaluation panel for a new evaluation of whether or not it meets the criteria set out in section 7(2)
c: the chief adjudicator has referred it back to the evaluation panel for a new evaluation of whether or not it meets the criteria set out in section 7(2)
130: How Part 1 applies to claim
1: Part 1
a: sections 13 50
b: any adjudication of it must be undertaken by the tribunal, on an application under section 62
2: This section is subject to sections 131 to 133
131: Making submission to chief executive if assessor thinks claim does not meet eligibility criteria
1: A claimant's ability under section 45
a: is available to the claimant in relation to an assessor's report on the claim if (and only if), before the transition date, the assessor's report had not already been referred to an evaluation panel; and
b: if available, is available as if the assessor's report were a full assessor's report.
2: This section overrides section 130
132: Lower-value claims provisions apply to claim
1: Sections 58 60(7) 80(2)
2: This section overrides section 130 section 133
133: Provisions that apply instead or as well if claim relates to dwellinghouse, etc, in multi-unit complex
1: If the claim relates to 1 or more dwellinghouses, or to 1 or more common areas, or to both, in a multi-unit complex,—
a: section 13 section 7(2)
b: the following sections apply to it as if it were a claim to which subpart 4
i: section 137
ii: section 138
iii: section 139
iv: section 140
v: section 141
2: This section overrides sections 130 132
4: Claims that it has been decided are eligible, but that are not in mediation or adjudication, before transition date
134: Claims to which this subpart applies
This subpart applies to a claim (the claim
a: it has been decided that the claim meets the criteria set out in section 7(2)
b: neither mediation nor adjudication of the claim has been initiated under the former Act.
135: How Part 1 applies to claim
1: Part 1 section 62
2: This section applies even if the claim does not comply with section 13
3: This section is subject to sections 136 to 141
136: Mediation fee paid may be applied to adjudication fee
1: If the claimant has, before the transition date, paid the fee then required by section 14
a: the amount paid does not have to be refunded; but
b: if the claimant initiates adjudication on or after that date, the fee payable must be reduced by the amount paid.
2: This section overrides section 135
137: Lower-value claims provisions do not apply to claim
1: Sections 58 60(7) 80(2)
2: This section overrides section 135
138: Consolidation of adjudication of claims relating to multi-unit complexes
1: This section applies to the adjudication of the claim if,—
a: on or after the transition date, the claimant applies to the tribunal to have it adjudicated; and
b: the dwellinghouse to which it relates is part of a multi-unit complex.
2: The tribunal must, unless it thinks consolidation inappropriate in the particular circumstances of any particular claim, consolidate into as few adjudications as possible (and preferably a single adjudication) all eligible claims (whether or not they are claims to which this subpart applies) relating to the same multi-unit complex.
3: In acting under subsection (2), the tribunal must—
a: take into account the stage any relevant adjudications have already reached; and
b: balance the likely cost and inconvenience to the parties to the claims concerned of consolidating or not consolidating the claims.
4: The adjudication of claims consolidated under subsection (2) must, as far as is possible, proceed—
a: as if it were the adjudication of a single claim; but
b: with the parties to each of the claims retaining the right to be separately represented.
5: This section overrides section 135
139: Availability of wider remedies in adjudication
1: This section applies to the adjudication of the claim if, on or after the transition date, the claimant applies to the tribunal to have it adjudicated.
2: The tribunal must widen the claim so that the remedies available to the claimant include as many of the remedies available to a new claimant as the tribunal thinks appropriate in the particular circumstances of the claim.
3: Subsection (2) does not apply unless the claimant has—
a: applied to the tribunal to have the claim widened; and
b: given the tribunal written consent to invasive testing (or further invasive testing) of the dwellinghouse concerned.
4: In deciding under subsection (2) whether to widen the claim (and if so, how far), the tribunal must take into account the possible cost and inconvenience to the parties.
5: On or after deciding under subsection (2) to widen the claim, the tribunal may ask the chief executive for a further full assessor's report.
6: A further full assessor's report asked for under subsection (5) must not relate to all or any matters required by section 42(2) to (4)
7: This section applies to claims that—
a: relate to the same multi-unit complex; and
b: are adjudicated together under section 138
8: Subsection (7) does not limit subsections (1) to (6).
9: This section overrides section 135
140: Claim history must be notified to territorial authorities for land information memorandum purposes
1: Section 124(1)
a: in respect of events to which that subsection applies that occur on or after the transition date; and
b: as if events of that kind that occurred before the transition date, and that are known to the department, occurred on that date, and as if the chief executive must notify the relevant territorial authority of them as soon after that date as it is reasonably practicable to do so.
2: Section 124(2)
a: in respect of events to which that subsection applies that occur on or after the transition date; and
b: as if events of that kind that occurred before the transition date, and that are known to the tribunal, occurred on that date, and as if the chair must notify the relevant territorial authority of them as soon after that date as it is reasonably practicable to do so.
3: This section overrides section 135
141: New claim in respect of same dwellinghouse, etc, in multi-unit complex
1: The claim may, if it relates to a dwellinghouse, common areas, or both, in a multi-unit complex, be withdrawn, at the claimant's discretion and without complying with section 67 section 19 20 21
2: If the claimant is part of, or joins, a new claim of the kind referred to in subsection (1), Part 1
3: Subsection (2) is subject to subsections (4) and (5).
4: If, within 1 year after the claim is withdrawn to enable a new claim of the kind referred to in subsection (1) to be brought, a claim of that kind is brought, section 37
5: Subsection (4) applies whether the claim concerned was withdrawn before, on, or after the transition date.
6: This section overrides section 135 section 67
5: Claims that it has been decided are eligible, and that are in mediation, before transition date
142: Claims to which this subpart applies
This subpart applies to a claim (the claim
a: it has been decided that the claim meets the criteria set out in section 7(2)
b: mediation of the claim has been initiated under the former Act.
143: How Part 1 applies to claim
1: Part 1 section 62
2: This section applies even if the claim does not comply with section 13
3: This section is subject to sections 144 to 146
144: Consolidation of mediation of claims relating to multi-unit complexes
1: This section applies to the mediation of the claim if the dwellinghouse to which the claim relates is part of a multi-unit complex.
2: The mediation may, with the consent of the parties to each claim concerned, be completed as part of a single mediation relating to 2 or more claims (whether or not claims to which this subpart applies) relating to the same multi-unit complex.
3: This section overrides section 143
145: Availability of wider remedies in mediation
1: The mediation of the claim—
a: may, with the consent of the parties, be completed on the basis that the remedies available to the claimant include any of the remedies available to a new claimant under section 50
b: must otherwise be completed on the basis that the remedies available to the claimant are limited to those that were available before the transition date.
2: This section applies to claims that—
a: relate to the same multi-unit complex; and
b: are mediated together under section 144
3: Subsection (2) does not limit subsection (1).
4: This section overrides section 143
146: Sections 136 to 141 apply to claim
1: The following sections apply to the claim as if it were a claim to which subpart 4
a: section 136
b: section 137
c: section 138
d: section 139
e: section 140
f: section 141
2: This section overrides section 143
6: Claims that it has been decided are eligible, and that are in adjudication, before transition date
Application of subpart and whether claim under former Act
147: Claims to which this subpart applies
This subpart applies to a claim (the claim
a: it has been decided that the claim meets the criteria set out in section 7(2)
b: adjudication of the claim has been initiated under the former Act.
148: Claim may continue under former Act or be withdrawn
1: The claim must be dealt with—
a: as if Part 1
b: under the former Act as modified by section 148A
2: Subsection (1) does not prevent the claimant from withdrawing the claim before it has been disposed of under the former Act.
3: Withdrawal of the kind contemplated by subsection (2) may be done at the claimant's discretion, and without complying with section 30
a: to make an application to the tribunal, under section 62 section 150 153(1)(a)
b: to be part of, or to join, a new claim, brought, under section 19 20 21 section 153(1)(b)
4: Subsection (3) does not limit the application to the claim of section 30 Section 148(1) substituted 29 August 2007 section 10 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007
148A: How former Act modified for section 148(1)
The former Act must for the purposes of section 148(1) Schedule 4 Section 148A inserted 29 August 2007 section 11 Weathertight Homes Resolution Services (Remedies) Amendment Act 2007
149: Who deals with claims to which section 148 applies
1: A claim to which section 148
a: the person who, under subsection (6), is to be taken for the purposes of this section to be, and to have the duties, functions, and powers of, the chief adjudicator; or
b: one of the persons who, at the close of the day before the transition date, held under the former Act the office of adjudicator but not also the office of chief adjudicator; or
c: one of the persons appointed as adjudicators in accordance with subsection (3) or (4).
2: The adjudicators referred to in subsection (1)(b) remain in office for the period reasonably necessary to enable them to exercise and perform their duties, functions, and powers in respect of claims to which this section applies.
3: However, if any of the adjudicators referred to in subsection (1)(b) resigns or is removed from office before the end of the period referred to in subsection (2), another adjudicator may be appointed, under section 24(2) and (3)
4: To enable claims to which this section applies to be dealt with in accordance with section 148 section 24(2) and (3)
5: To avoid doubt, adjudicators referred to in subsection (1)(b) or appointed in accordance with subsection (3) or (4) are paid salaries and allowances in accordance with clause 5
6: For the purposes of this section, and until it is no longer reasonably necessary for those purposes, the person who holds office as the chair (whether because section 156(1)
7: This section does not limit section 148(1) How matters may proceed if claim under former Act withdrawn
150: Owner of dwellinghouse not in multi-unit complex may apply to have withdrawn claim adjudicated by tribunal
1: If the claim is withdrawn as contemplated by section 148(2) section 62
2: This section applies even if the claim does not comply with section 13
151: How Part 1 applies to adjudication of withdrawn claim in respect of dwellinghouse not in multi-unit complex
1: If, under section 150 Part 1
2: This section is subject to section 152
152: Exceptions to sections 151 and 154
1: The application for adjudication need not be accompanied by the prescribed fee (if any).
2: The tribunal may consider any written evidence (including an assessor's report) submitted for the adjudication, under the former Act, of the withdrawn claim.
3: The following sections apply to the claim as if it were a claim to which subpart 4
a: section 137
b: section 139
c: section 140
4: If, within 1 year after the claim is withdrawn to enable an application to be made to the tribunal, in accordance with section 150(1) section 37
a: brought when the withdrawn claim was brought; but
b: brought under this Act (as if it were then in force).
5: Subsection (4) applies whether the claim concerned was withdrawn before, on, or after the transition date.
153: Dwellinghouse or common areas in multi-unit complex
1: If the claim is withdrawn as contemplated by section 148(2)
a: apply to the tribunal, under section 62
b: be part of, or join, a new claim brought, in respect of the dwellinghouse, common areas, or both, under section 19 20 21
2: This section applies even if the claim does not comply with section 13
154: How Part 1 applies to adjudication of withdrawn claim under former Act in respect of multi-unit complex
1: If, under section 153(1)(a) Part 1
2: This section is subject to section 138 subpart 4 section 152
155: How Part 1 applies to new claim in respect of same dwellinghouse, etc, in multi-unit complex
1: If, under section 153(1)(b) section 19 20 21 Part 1
2: Subsection (1) is subject to subsections (3) to (6).
3: The application for adjudication of the new claim need not be accompanied by the prescribed fee (if any).
4: The tribunal may consider any written evidence (including an assessor's report) submitted for the adjudication, under the former Act, of the withdrawn claim.
5: If, within 1 year after the claim is withdrawn to enable a new claim of the kind referred to in subsection (1) to be brought, a claim of that kind is brought, section 37
6: Subsection (5) applies whether the claim concerned was withdrawn before, on, or after the transition date.
7: Transitional provisions relating to appointments, etc
156: Chief adjudicator to be taken to have been appointed as chair on day after assent
1: This subsection applies to the person who, on the commencement of this section, holds the office of chief adjudicator under section 24(4)
2: The person to whom subsection (1) applies is to be taken to have been appointed on the commencement of this section as chair under section 103(4)
a: for a term that, immediately before that commencement, represented the remainder of that person's term as chief adjudicator; and
b: subject to the conditions of employment that applied to the person as chief adjudicator immediately before that commencement; and
c: subject to any determination made under clause 6(1)
3: The Remuneration Authority is not obliged to make a determination under clause 6(1)
157: Chair's role before transition date
1: Before the transition date, the person to whom section 156(1)
a: may exercise powers of the chair in enactments to which section 2(2) section 11
b: must not be paid a salary or allowances, or otherwise remunerated, in respect of the office of chair.
2: This section overrides section 156
158: Chief adjudicator before and after transition
The person to whom section 156(1)
a: unless he or she earlier resigns or is removed from that office, continues to hold office under the former Act as the chief adjudicator, and to be paid salaries and allowances under that Act in respect of that office, until the transition date; but
b: ceases on the close of the day before that date to hold, and to be remunerated in respect of, that office, but on and after that date and while he or she holds office as chair is, under section 149(6)
159: Powers of appointment not limited or affected
Sections 156 to 158
a: the application of section 11 section 103(4)
b: the power, before that date, to appoint adjudicators under section 24(2) and (3)
c: the power, before that date, to appoint a chief adjudicator under section 24(4)
160: Appointment of tribunal members and officers, etc, after enactment but before transition date
This Act does not limit or affect the exercise, in accordance with section 11
a: appoint members of the tribunal under section 103(1)
b: appoint a Registrar under section 108(1)
c: designate or provide employees of the Ministry to act as other officers of the tribunal under section 108(2) or (4)
d: any other act or thing for the purposes of any other provision of Part 1
8: Validations connected to 2011
Gazette Subpart 8 inserted 14 March 2016 section 7 Weathertight Homes Resolution Services Amendment Act 2016
161: Validation of clauses 1B and 1C of 2011
Gazette Clauses 1B and 1C of the 2011 Gazette Section 161 inserted 14 March 2016 section 7 Weathertight Homes Resolution Services Amendment Act 2016
162: Certain decisions not invalid because of lack of agreement by participating territorial authority
1: A decision referred to in subsection (2) is not invalid merely because a participating territorial authority did not agree to the claimant receiving a financial contribution under the package of financial assistance measures.
2: This subsection refers to a decision, made before 23 February 2015, that a claimant was not a qualifying claimant because the criteria in clause 1B or 1C of the 2011 Gazette Section 162 inserted 14 March 2016 section 7 Weathertight Homes Resolution Services Amendment Act 2016
163: Certain applications continue on basis of law as amended
1: This section applies to an application made under section 125C
2: For the purposes of determining the application, the amendments made by the Weathertight Homes Resolution Services Amendment Act 2016 Section 163 inserted 14 March 2016 section 7 Weathertight Homes Resolution Services Amendment Act 2016
164: Amendments to 2011
Gazette
1: This section amends the 2011 Gazette
2: Delete all the words after the heading Contribution Criteria: Financial Assistance Package Definitions
3: In clause 1, delete To qualify for a contribution from the Crown, all of the criteria in this clause 1 must be met:
4: Revoke clauses 1B and 1C.
5: In clause 2, delete Subject to clause 2C, to qualify for a contribution from a Participating Territorial Authority:
6: Revoke clause 2A. Section 164 inserted 14 March 2016 section 7 Weathertight Homes Resolution Services Amendment Act 2016
9: Certain claimants deemed to have eligible claims
Subpart 9 inserted 15 March 2016 section 8 Weathertight Homes Resolution Services Amendment Act 2016
165: Meaning of affected claimant
In section 166 affected claimant
a: the person brought a claim under section 9
i: 1 or more code compliance certificates were issued for the relevant building work; and
ii: the certificate or certificates were issued before 1 January 2012; and
b: the claim was brought within the period of 10 years immediately before the day on which the code compliance certificate was issued (or, if more than 1 certificate was issued, the day on which the final certificate was issued); and
c: the chief executive or the chair decided, within the period starting on 1 April 2007 and ending on 10 June 2014, that the claim was not an eligible claim; and
d: the sole reason for the chief executive’s or the chair’s decision was that the claim failed to satisfy the criteria in, as the case may be, section 14(a) 15(c) 16(a) 17(a) 18(c)
e: in reaching that decision, the chief executive or the chair treated the date on which the dwellinghouse was constructed or altered as a date earlier than the date on which the code compliance certificate for the relevant building work was issued (or, if more than 1 certificate was issued, the date on which the final certificate was issued); and
f: on the commencement of this section, the person still owned the dwellinghouse. Section 165 inserted 15 March 2016 section 8 Weathertight Homes Resolution Services Amendment Act 2016
166: Affected claimants deemed to have eligible claims
1: An affected claimant is deemed to have an eligible claim under this Act in respect of the dwellinghouse concerned, and the provisions of this Act and the 2011 Gazette Weathertight Homes Resolution Services Amendment Act 2016
2: A claim must be treated as eligible on and from the date on which the claim would have been an eligible claim if the chief executive or the chair had originally decided the claim in the person’s favour.
3: Clause 1G of the 2011 Gazette
4: A claim must be treated as satisfying the requirements of clause 1H(i) and (ii) and I(i) and (ii) of the 2011 Gazette
5: To avoid doubt, this section does not automatically confer on an affected claimant the status of a qualifying claimant. Section 166 inserted 15 March 2016 section 8 Weathertight Homes Resolution Services Amendment Act 2016