Leaky cladding victims sidestep James Hardie’s Irish defence
The Supreme Court has upheld findings of the Court of Appeal that James Hardie’s Irish ultimate parent company and two James Hardie holding companies be included as defendants in the $NZ250 million plus defective cladding class action being taken against them.
The parent company had been protesting the jurisdiction of the High Court in New Zealand, meaning it was entitled to be dismissed from the proceedings. The two other holding companies sought to be dismissed on the basis they were not responsible for the actions of the other James Hardie companies that are defendants.
However, in a unanimous decision, the Supreme Court denied the James Hardie companies an opportunity to have a further appeal against the judgment of the Court of Appeal which found that the claims against them were arguable.
The judgment released on 16 April 2019 notes, “there is a distinct disadvantage to the claimants if the progress of their claims is further delayed."
It also states: "elaborate and costly arguments on jurisdiction can be disproportionate on the interlocutory character of the challenge."
Adina Thorn of Adina Thorn Lawyers, the firm leading the funded class action, says the Supreme Court’s decision means the team working on behalf of more than a thousand owners, now has the ability to better discover how much the top levels within the JHI group knew about the technical failings of the company's cladding products. They want to know what they knew, what they should have known, and when.
“We are now better able to learn where and when decisions were made to both ignore these failings and to continue promoting and marketing the products concerned.”
She says the claim broadly seeks to prove that the James Hardie cladding products were inherently defective and substantive contributors to the victims’ homes leaking.
“Clearly the scale of the legal task we face is still considerable. They have deep pockets. A note in the company’s report to the Australian Stock Exchange records for the nine months to December 3, 2018, they spent $US4.4 million in New Zealand on legal and related costs.
“Fortunately, as part of a funded class action, our claimants have the legal and technical horsepower to hold the JHI group to account for the problems they allege were caused by James Hardie’s products.
“Those numbers are mind-blowing to me”.
“We allege that the failures in the James Hardie cladding products have destroyed most of the value in the victims’ homes, and have sadly exposed many to serious health issues, the most serious seems to be from the black mould.
“We have sadly had people who have committed suicide, marriage breakdowns, deaths, and many record having mental breakdowns. All have enormous levels of stress. Words cannot describe the pain this has caused.
“We obviously still have a lot a work to do, but now we have a clearer pathway in which to move forward.
“Clearly there is a lot of work to be done, but this decision has lifted our confidence levels. We just want to move forward for the victims”.