Group wants some of the $7m sought by James Hardie to be paid by other litigants
The losers in a case against James Hardie are facing more than $7 million in possible court costs, but want at least some of that shared with other groups who sued the building products maker.
The $7m costs and disbursements being claimed by James Hardie’s lawyers include $1.1m for independent product testing of its Harditex building cladding product.
Last year a group of 144 homeowners led by Tracey Cridge and Katrina Fowler lost a case against James Hardie after they failed to establish that Harditex cladding was a cause of the weathertightness problems in their homes.
They also failed to prove that the manufacturer had provided inadequate and misleading information about Harditex.
A second case against James Hardie, from Karen White and others, was abandoned and settled for $1.25m in James Hardie’s favour.
A third case by Metlifecare’s Waitakere Group and others over rest home buildings is still to be heard.
Lawyer Jim Farmer, QC, for Cridge and others, last week told Justice Simon France in the High Court at Wellington that common costs should be apportioned equally between the three complainants.
The product testing was carried out only once, and James Hardie had opposed repeating the testing for the White and Waitakere cases.
The main point in all three lawsuits was Harditex’s fitness for purpose, Farmer said.
He pointed out that a major witness for James Hardie was a building inspector who attended throughout the lengthy trial, and suggested that time could have been used to help defend the other two cases.
He wanted to see invoices and instructions on why she was in court.
Justice France said there should never have been three different suits filed against James Hardie.
“What has happened here is not desirable, not right that it should have happened with three sets of proceedings — it’s ridiculous.”
Justice France asked whether he would have to hear evidence from the building inspector for a costs hearing and said that would be impractical.
He noted that the costs, which included product testing and expert witnesses, would have been incurred by Cridge and others, regardless of the other cases going ahead.
Farmer disagreed and said resources put into defending the Cridge case would not necessarily have been the same as defending all three cases. “That is where the commonality comes in.”
Justice France said it was hard to know if that was the case.
“The Cridge proceedings would do considerable reputational damage. It attacked one of its leading products over a period and how it was made.”
The lawyer for James Hardie subsidiary Studorp, Jack Hodder, QC,
responded that apportioning common costs across the three cases was unworkable and would require a mini trial of its own.
“How long does it take, how much cross-examination does it take? What judge is going to decide over the three cases?”
He acknowledged that the costs claimed against Cridge and others were substantial. It was a hugely significant reputational issue for James Hardie, and an attack on fibre board plaster products worldwide.
However, there was no question that the costs being asked for were incurred during the current proceedings.
He did not deny that costs for the Waitakere case would be lower.
The courts required costs to be recovered “expeditiously”, and the conclusion of the Waitakere case could be some years away, he said.
James Hardie manufactured and sold Harditex cladding from 1987 to 2005 for residential homes. The group of 144 homeowners alleged the Harditex cladding was not fit for purpose, inherently flawed, and was too difficult for builders to install.
Justice France reserved his decision.