Page 88 - Build 151

Departments/Legal
By Karen Shaw, Senior Associate, Harkness Henry, Hamilton
Long-stop period clari ed
Claims against faulty building work need to be brought within a 10-year long-stop period. Recent court cases have clari ed how this defence applies to design work and product manufacturers and suppliers.
Stadium Southland rebuild.
WHILE THE LIMITATION provisions of the Building Act can provide an absolute defence, the 10-year long-stop period in section 393 of the Building Act 2004 only applies ‘in relation to building work’.
What’s ‘building work’ and what’s not?
If a defendant believes a claim is statute barred due to the 10-year long-stop period, they will usually apply to strike out all or part of a plainti ’s claim against them. Some recent cases have explored what is, and is not, ‘building work’.
In September 2010, Stadium Southland’s roof collapsed after a heavy snowstorm. The building owners, the Southland Indoor Leisure
Centre Charitable Trust, issued proceedings against the Invercargill City Council and a consulting engineer. The Council joined a second rm of consulting engineers who had carried out peer-review work of the original design and some further redesign work.
Building work includes design work
That second rm of consulting engineers and their employees sought to strike out the causes of action against them, relying in part on section 393. They argued that their work carrying out a structural review and producing a design review letter was building work as ‘design work’. They also argued that as this work was done more than 10 years before the proceedings against them commenced, the claim was statute barred.
The High Court agreed with their position. ‘Building work’ in the 2004 Act did include ‘design work’.
Has to be for a speci c building
The Court noted ‘building work’ is de ned to mean work ‘for, or in connection with, the construction, alteration, demolition, or removal of a building’. Further, the Act de nes ‘construct’ as including ‘to design, build, erect, prefabricate, and relocate the building’.
The High Court emphasised that, in each case, what is ‘building work’ is a fact-speci c inquiry. However, where design work is speci c to a particular building, it is likely to be building work. If consultancy
86 — December 2015/January 2016 — Build 151
PHOTO – SNPA/DIANNE MANSON