James Hardie loses Supreme Court bid to toss out class action
By Rebecca Howard
Nov. 27 (BusinessDesk) - Two James Hardie companies, James Hardie New Zealand and Studorp, lost their application to toss out a leaky buildings class action case in the Supreme Court.
The High Court is set to hear a representative action brought by leaky building owners against James Hardie alleging that leaks in their homes are attributable to inherent defects in cladding systems manufactured by James Hardie. They also claim that James Hardie made misleading statements about the cladding systems in the technical literature.
James Hardie went to New Zealand's top court after the Court of Appeal upheld a ruling allowing the suit to proceed, arguing among other things that the Appeal Court erred in finding that the respondents had the “same interest” in the subject matter of the proceeding as the class members it is proposed they represent. The building products maker also argued the damage did not result from a single event or single source and was more complex.
In dismissing the appeal today, Chief Justice Sian Elias, Justices Ellen France and Susan Glazebrook said the bench needed to be satisfied that "it is in the interests of justice" to hear and determine the appeal before trial. The judgment noted that James Hardie can raise the issues that have been identified such as the evolving nature of the cladding systems at trial and that causation will have to be established at trial.
"In other words, there are other avenues through which James Hardie can pursue matters which mean it is not necessary, in the interests of justice, to hear and decide the proposed appeal prior to trial," the judgment said.