Couple in leaky home quandary after lawyers didn’t serve papers
Legally, a statement of claim that is not served within one year of being filed must be treated as having been discontinued by the plaintiffs.
A couple who had hoped to file a claim against the Selwyn District Council and the builder of their home after discovering the house was not watertight will now need to consider legal steps against their solicitors, after the lawyers failed to serve the statement of claim in time.
A recent decision by the High Court at Christchurch details the legal woes of Emma-Louise Hobday and Jason Hobday with regard to the home they purchased from the Cornelius Johnson Family Trust in 2014.
The trust was originally the owner of the land purchased by the Hobdays, and the house they bought was built by Kye and Justine’s building company, Kye Johnson Builders Ltd. The Selwyn District Council issued a building consent for the property in September 2011, and a Code Compliance Certificate in October 2012.
According to the court decision, the Hobdays learned in September 2022 that their house was not watertight. They told the court the required repairs could cost “hundreds of thousands of dollars”.
They approached the Selwyn District Council, and were advised that the Weathertight Homes Resolution Service was not accepting new claims after December 31, 2021.
An employee from the council referred to the possibility that the couple may have the ability to claim against the builder of the property if this was done within the 10-year warranty period.
The lawyers acting for the Hobdays at the time filed a statement of claim to the court on October 17, 2022 – one day within the 10-year long stop limitation period.
However, due to an “oversight”, the statement of claim was not served (to the council and the trust) within one year of being filed in the court. Legally, a statement of claim that is not served within one year of being filed must be treated as having been discontinued by the plaintiffs.
The Hobdays asked the court for an extension of time so their claim could still be served. This would prevent the Cornelius Johnson Family Trust and the Selwyn council from relying on a provision in the Building Act that says civil proceedings in respect of building work have to be brought within 10 years of the house being built.
Lawyers for the trust did not oppose the application for the extension of time, but the council did.
In considering the Hobdays’ application, Associate Judge Dale Lester said the Selwyn District Council had accrued the right of limitation, and the Hobdays were essentially asking the court to deprive the council of that right.
“Part of the reasoning for the long stop [time limitation of claims] is that conducting litigation 10 years after the events in issue involves self-evident difficulties in respect of, inter alia, the availability of witnesses, the dimming of memories, and the availability of records. In practical terms, Emma and Jason are asking for the long stop to become 11 years plus,” the judge said.
The court said the council was an “innocent” party and had no contribution to the circumstances leading to the statement of claim not being served in time.
Associate Judge Lester added that declining the Hobdays’ application for an extension of time may mean the couple must bring a claim against their former solicitors, but “they were always going to be involved in litigation concerning the building defects”.
He said it was hard to see how the solicitors concerned could have any defence to a negligence claim, since the only explanation he had seen as to why the original claim wasn’t served was because it was “overlooked”.
The application for an extension of time was declined.
The Hobdays’ current solicitor declined to comment when approached by The Press.