I have been thinking about illegality and the duty of care in leaky home cases. Territorial Authorities (the certifying local Council) always, in my experience, cross claim against the other respondents such as the architect, builder, plasterer, roofer etc. The TA usually seeks pursuant to the Law Reform Act an order that a particular (if not all) respondent indemnity them to the extent to which that particular respondent contributed to the losses suffered by the owner. I have yet to come across a case where a respondent has asserted as a positive defence, against such cross claim, that their liability should be excluded or certainly reduced as a result of the TA acting illegally in the first place. You have to keep in mind that the first unlawful act that occurs is usually the TA granting building consent. Applying the classic‘but for’ argument, none of the respondents would be facing a claim from an owner if the TA had acted lawfully in the first place i.e. declined to grant building consent or refused to certify compliance with the Building Act and Code. Anyway, food for thought for any respondent counsel who might wish to try that argument on.
By Chris Patterson